Opinion
Case No. CV 18-9917-MWF (JPR)
08-28-2019
RAFAEL GERMAN, Petitioner, v. JOSIE GASTELO, Warden, Respondent.
ORDER DISMISSING PETITION WITHOUT PREJUDICE UNDER FEDERAL RULE OF CIVIL PROCEDURE 41(a)(2)
On February 25, 2019, Petitioner moved to voluntarily dismiss his federal habeas Petition, which he had filed on November 27, 2018, and as to which Respondent had filed an Answer on January 28. Petitioner gave no reason for the request. The Court ordered Respondent to file a response and allowed Petitioner to file a reply no later than 14 days after service of the response. The Court warned Petitioner that if it granted his request, even "without prejudice," any subsequent petition might be untimely or otherwise procedurally barred, meaning that "none of his claims would ever be heard on federal habeas review." Respondent filed nonopposition to Petitioner's dismissal request on March 1, but Petitioner has not filed a reply.
"A 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). Ordinarily, such dismissal should be without prejudice. Fed. R. Civ. P. 41(a)(2). In light of Respondent's lack of opposition and Petitioner's failure to file a reply even after the Court warned him of the possible consequences of dismissal, the Court GRANTS Petitioner's motion and dismisses this action without prejudice. See Tatum v. Yates, 549 U.S. 1268 (2007) (denying certiorari in Tatum v. Lewis, 184 F. App'x 646, 647-48 (9th Cir. 2006) ("Even if the district court was required to take into account the [petitioner]'s equities in ruling on [his] Rule 41(a)(2) motion, it did so by correctly advising [him] of the potential consequences of the dismissal of his petition.")). Let Judgment be entered accordingly. DATED: August 28, 2019
/s/_________
MICHAEL W. FITZGERALD
U.S. DISTRICT JUDGE Presented by: /s/_________
Jean P. Rosenbluth
U.S. Magistrate Judge