United States District Court, D. Arizona
REPORT AND RECOMMENDATION
A. Bowman United Suites Magistrate Judge
before the court is the petitioner's motion, filed on
February 7, 2019, to dismiss the petition for writ of habeas
corpus. (Doc. 19)
on July 27, 2018, the petitioner, Rene Ray Starks, filed in
this court a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. (Doc. 1) The respondents filed a
limited answer on November 8, 2018 in which they argue
Starks' claims are untimely and procedurally defaulted.
(Doc. 11) On February 7, 2019, Starks filed the pending
Motion for Voluntary Dismissal. (Doc. 19) He explains he
“currently [has] a special action pending in the State
appellate court, ” and he “wish[es] to preserve
[his] habeas corpus option in order to include any decision
by the State Courts.” (Doc. 19) Clearly, Starks seeks a
dismissal without prejudice.
respondents filed a response opposing the motion in part.
(Doc. 20) They argue the action should be dismissed with
prejudice. Id. It appears to the court that
Starks' motion proceeds pursuant to Fed.R.Civ.P.
opposing party has filed an answer and if the parties
appearing do not stipulate to dismissal, a plaintiff seeking
dismissal must apply for leave of court. Fed.R.Civ.P. 41(a).
The Rule provides that “an action may be dismissed at
the plaintiff's request only by court order, on terms
that the court considers proper.” Fed.R.Civ.P.
41(a)(2). “Unless the order states otherwise, a
dismissal under this paragraph (2) is without
district court should grant a motion for voluntary dismissal
under Rule 41(a)(2) unless a defendant can show that it will
suffer some plain legal prejudice as a result.”
Smith v. Lenches, 263 F.3d 972, 975 (9th
Cir. 2001). “[L]egal prejudice means prejudice to some
legal interest, some legal claim, some legal argument.”
Id. at 976 (punctuation modified) “Uncertainty
because a dispute remains unresolved or because the threat of
future litigation causes uncertainty does not result in plain
legal prejudice.” Id. “Also, plain legal
prejudice does not result merely because the defendant will
be inconvenienced by having to defend in another forum or
where a plaintiff would gain a tactical advantage by that
their response, the respondents argue that the petition
should be dismissed with prejudice. (Doc. 20) They maintain
that Starks' claims are untimely and “Starks'
successive proceedings in state court - including his most
recent filings - do not change this result. . . .”
(Doc. 20, p. 2) They do not, however, explain why all this
means that the action should be dismissed with prejudice.
they are correct and Starks' pending special action does
not rescue his untimely pending claims, the respondents fail
to explain how they will suffer legal prejudice if the court
dismisses the action without prejudice. Starks could, of
course, refile those claims later, but, as the
respondents' assert, they would still be untimely.
Nothing prevents the respondents from raising this argument
again when they file their answer. The respondents would have
to expend resources preparing a second answer and resolution
of the claims would be delayed, but neither constitutes legal
prejudice. See Smith v. Lenches, 263 F.3d 972, 976
court notes that when ruling on a motion to dismiss, it
“may consider whether the plaintiff is requesting a
voluntary dismissal only to avoid a near-certain adverse
ruling.” Egan v. Singer, 2014 WL
4230879, at *2 (D. Haw. 2014). That, however, is not the
situation here. The respondents' arguments are, as yet,
unadjudicated. The court has not indicated how it will rule.
Accordingly, it cannot be said that an adverse ruling on the
pending claims is a “near-certain.” See,
e.g., Terrovona v. Kincheloe, 852 F.2d 424, 429
(9th Cir. 1988) (“[S]ince the magistrate had
already issued his report and recommendation when the motion
was filed, the district court's refusal to use its
discretion to dismiss the petition under Fed.R.Civ.P.
41(a)(2) is reasonable.”).
Magistrate Judge recommends that the District Court, after
its independent review of the record, enter an order Granting
the petitioner's motion to dismiss his petition for writ
of habeas corpus without prejudice. (Doc. 19)
to 28 U.S.C. § 636(b), any party may serve and file
written objections within 14 days of being served with a copy
of this report and recommendation. If objections are not
timely filed, they may be deemed waived. The Local Rules