STEPHEN M. McNAMEE, Senior District Judge.
Pending before the Court is Plaintiff's motion to vacate Order granting withdrawal of Plaintiff's counsel and motion to vacate Order denying Plaintiff's motion for remand. (Doc. 125.) Defendant has responded and Plaintiff has replied. (Docs. 131, 133.) Plaintiff pro per Toby Harris asks the Court to reconsider its prior Order (Doc. 124); Plaintiff's request will be denied.
Also pending before the Court is Plaintiff's motion to dismiss his allegations of wrongful termination pursuant to 29 U.S.C. § 215(a)(3) and to remand this matter to state court. (Doc. 126.) Defendant has responded and Plaintiff has replied. (Docs. 130, 132.) The Court will grant this motion.
Previously, this Court denied Plaintiffs' motion for conditional certification of their collective action motion under the Fair Labor Standards Act ("FLSA"). (Doc. 100.) Subsequently the parties stipulated to dismissing with prejudice counts one and two of Plaintiffs' second amended complaint with each party to bear their own costs and attorney's fees. (Doc. 108.) Following the dismissal of counts one and two (Doc. 109), only count three remained, Plaintiff Toby Harris's wrongful termination claim based on alleged violations of 29 U.S.C. § 215(a)(3), A.R.S. § 23-1501 and A.R.S. § 23-364. (See Doc. 35.) Following the dismissal of counts one and two, the other Plaintiffs, Casey Corbin, Christopher Flournoy, Benny Henriksen and Alan Reeser no longer had any further claims in the action and were dismissed; Toby Harris remained as Plaintiff. (Docs. 108, 109.) At the same time, due to the Court's denial of Plaintiffs' motion for conditional certification for FLSA collective action, counsel for Plaintiffs moved to withdraw, which was granted. (Docs. 107, 124.) Plaintiff Harris, pro per, first asks the Court to reconsider its Order allowing counsel to withdraw. Next, he moves to dismiss his lone federal allegation under the FLSA and remand this matter to state court.
Plaintiff's Reconsideration Motion
Motions for reconsideration should be granted only in rare circumstances. Defenders of Wildlife v. Browner , 909 F.Supp. 1342, 1351 (D. Ariz. 1995). "Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1 J, Multnomah County v. ACandS, Inc. , 5 F.3d 1255, 1263 (9th Cir. 1993). Such motions should not be used for the purpose of asking a court "to rethink what the court had already thought through-rightly or wrongly.' " Defenders of Wildlife , 909 F.Supp. at 1351 (quoting Above the Belt, Inc. v. Mel Bohannon Roofing, Inc. , 99 F.R.D. 99, 101 (E.D. Va.1983)).
Plaintiff has not established grounds for reconsideration. Rather, Plaintiff has rehashed the same arguments he submitted in his opposition to his counsel filing for withdrawal. (Doc. 125.) The Court has already considered Plaintiff's arguments. A reconsideration motion should not be used for the purpose of asking a court "to rethink what the court had already thought through-rightly or wrongly.'" Defenders of Wildlife , 909 F.Supp. at 1351. Thus, the Court will not vacate its prior Order.
Rule 41(a)(2) Dismissal
Next, pursuant to Fed.R.Civ.P. 41(a)(2), Plaintiff asks the Court to voluntarily dismiss without prejudice count three's wrongful termination allegation pursuant to 29 U.S.C. § 215(a)(3) and remand this matter to state court so he may litigate his remaining state claims. (Doc. 126 at 2.) Defendant does not oppose the request but asks that the Court dismiss Plaintiff's FLSA allegation with prejudice. (Doc. 130.) Defendant argues that it is entitled to a dismissal with prejudice because it has conducted significant discovery on Plaintiff's claim and expended considerable attorney's fees. (Id. at 1.) Defendant further requests that the Court award it costs and attorney's fees. (Id. at 2.)
Rule 41(a)(2) allows for dismissal by court order upon a plaintiff's request "on terms that the court considers proper." Rule 41(a)(2). A motion for voluntary dismissal under Rule 41(a)(2) is addressed to the district court's sound discretion. Stevedoring Servs. of Am. v. Armilla Int'l B.V. , 889 F.2d 919, 921 (9th Cir. 1989). Pursuant to Plaintiff's request, the Court will grant his motion to dismiss his 29 U.S.C. § 215(a)(3) allegation in count three. However, the Court in its discretion also finds that such dismissal shall be with prejudice. Defendant has conducted significant discovery and expended considerable attorney's fees on Plaintiff's claim during the course of this litigation.
Finally, as to costs and fees, the issue of attorney's fees is not properly before the Court. To the extent that Defendant wishes to pursue an award of attorney's fees and costs, the Court will consider whether such an award is ...