Opinion
2:17-cv-01651-JCM-NJK
10-20-2022
JAMES E. COHAN, Plaintiff, v. JOSEPH LOMBARDO, et al., Defendants.
ORDER
[DOCKET NOS. 34, 35]
NANCY J. KOPPE, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Plaintiff's motion to be allowed to refile a claim. Docket No. 34. Plaintiff previously filed two amended complaints in this action. Docket Nos. 14, 22-1. Plaintiff's first amended complaint was dismissed with leave to amend. Docket No. 16. The undersigned issued a report and recommendation that Plaintiff s second amended complaint and this case be dismissed. Docket No. 23. The order adopting the report and recommendation noted that Plaintiff did not object to the dismissal without prejudice. Docket No. 30 at 2 (citing Docket No. 24).
Dismissal of a case without prejudice preserves a plaintiff s right to refile his claim. See, e.g., Com. Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (internal citations omitted). However, after a case has been dismissed without prejudice, a plaintiff must file his complaint in a new case and not refile it in the dismissed case. E.g., Frost v. Nat'l Sec. Agency, 2018 WL 6822632, *2 (N.D. Cal. 2018); Stine v. Wiley, 2010 WL 3516634, *1 (D. Colo. 2010).
Accordingly, Plaintiffs motion to refile a claim is DENIED. Docket No. 34. Plaintiff s application to proceed in forma pauperis is DENIED as moot. Docket No. 35. This denial does not affect Plaintiff s ability to file his complaint in a newly initiated case.
IT IS SO ORDERED.