United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA UNITED STATES DISTRICT JUDGE
Pending
before the Court are Defendants' motion to alter or amend
the judgment (Doc. 24) and Defendants' motion to
substitute counsel of record (Doc. 25). For the following
reasons, both motions will be denied.
As
background, on August 22, 2019, the Court granted
Defendants' motion to dismiss. (Doc. 20.) Near the end of
the order, the Court noted that Sobh had requested leave to
amend and that Defendants had not “ask[ed] the Court to
dismiss any of Sobh's claims with prejudice.”
(Id. at 11-12.) Thus, the Court stated, “to
the extent Sobh wishes to attempt to revive some or all of
the claims that were dismissed in this Order, he is granted
leave to do so.” (Id. at 12.) The Court also
set a deadline of September 13, 2019 by which Sobh
“may” file an amended complaint and instructed
the Clerk of Court to “terminate this action and enter
judgment accordingly” if Sobh failed to do so.
(Id.)
On
September 17, 2019, after Sobh declined to file anything, the
Clerk of Court issued a judgment in Defendants' favor,
which specified that “the complaint and action are
dismissed without prejudice.” (Doc. 22,
emphasis added.)
On
September 26, 2019, Sobh filed a new lawsuit against the same
Defendants. That lawsuit has been randomly assigned to a
different judge. (No. CV-19-5277-SRB, Doc. 1.) The filing of
this new lawsuit, in turn, has prompted Defendants to move to
amend the judgment in this case to reflect that Sobh's
claims were dismissed with prejudice. (Doc. 24.)
This
request will be denied. If the Court had ordered Sobh to file
an amended complaint by a certain deadline, only for Sobh to
ignore that deadline, it might have been possible to dismiss
Sobh's complaint under Rule 41(b) as a sanction for
ignoring a court order. Yourish v. Cal. Amplifier,
191 F.3d 983, 986 (9th Cir. 1999). In that scenario, the
dismissal would arguably be with prejudice. See Fed.
R. Civ. P. 41(b) (“Unless the dismissal order states
otherwise, a dismissal under this subdivision . . . operates
as an adjudication on the merits.”). But here, the
Court didn't order Sobh to do anything-after dismissing
his claims without prejudice, it merely gave him the option
to file an amended complaint by a certain deadline. The Ninth
Circuit recently clarified that it would be impermissible to
issue a Rule 41(b) dismissal order under these circumstances.
Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d
884, 891-92 (9th Cir. 2019) (“[T]he district court did
not require that Plaintiff file an amended complaint
following the initial Rule 12(b)(6) dismissal . . . and it
did not indicate that failure to do so would result in
dismissal of the complaint pursuant to Rule 41(b). . . . A
grant of leave to amend is not an order to amend. Therefore,
Rule 41(b) did not apply here, and the district court's
dismissal on this ground constituted an abuse of
discretion.”).
Thus,
Defendants are incorrect in their assertion that “the
Court was dismissing this action without prejudice
to Plaintiff's ability to replead, but if Plaintiff
failed to do so by September 13, then the action would be
terminated with prejudice to Plaintiff's ability
to re-plead.” (Doc. 24 at 4.) To the contrary, the
Court merely dismissed Sobh's claims without prejudice.
Accordingly, the Clerk of Court didn't commit a clerical
error by denoting, in the judgment, that the dismissal was
without prejudice.
Defendants'
“manifest injustice” arguments (Doc. 24 at 4-5)
also lack merit. A dismissal without prejudice does not bar
refiling and relitigating the same claims. By missing the
deadline for filing an amended complaint, Sobh lost the
opportunity to proceed with a new complaint without having to
initiate a new action and pay a new filing fee. Moreover, a
plaintiff who loses the opportunity to proceed in the case he
initially filed, and who therefore must file an entirely new
action, risks running afoul of any applicable statutes of
limitations. Rinieri v. News Syndicate Co., 385 F.2d
818, 821 (2d Cir. 1967) (“[A] dismissal without
prejudice permits a new action (assuming the statute of
limitations has not run) without regard to res judicata
principles . . . .”); S. Gensler, 1 Federal Rules
of Civil Procedure, Rules and Commentary, Rule 15, at
401-02 (2018) (“[A]fter a dismissal . . . without
prejudice . . . the plaintiff is free to simply file a new
action. Often, however, the plaintiff will prefer to keep the
original suit alive via leave to amend, perhaps because the
statute of limitations has run and the plaintiff is trying to
preserve the original filing date for relation back under
Rule 15(c).”). But assuming no statute of limitations
bars the new lawsuit, a dismissal without prejudice does not
prevent a plaintiff from further litigating his claims.
Finally,
as for Defendants' motion to substitute counsel of record
(Doc. 25), this motion is moot because the above-captioned
case is closed.
Accordingly,
IT IS ORDERED that Defendants' Rule
59(e) Motion to Amend the Judgment Or, in the Alternative,
for Relief from Judgment Pursuant to Rule 60 (Doc. 24) is
DENIED.
IT
IS FURTHER ORDERED that Defendants' motion to
substitute counsel of record (Doc. 25) is DENIED AS
MOOT. The above-captioned case is closed, and the
parties are ordered not ...