Opinion
No. CV 13-04606-SJO (DFM)
08-16-2015
KESHIA GORDON, Petitioner, v. DEBORAH JOHNSON, Warden, Respondent.
Order Accepting Findings and Recommendation of United States Magistrate Judge
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition, the other records on file herein, and the Report and Recommendation of the United States Magistrate Judge. Petitioner has not filed any written objections to the report. The Court accepts the findings and recommendation of the Magistrate Judge.
On July 17, 2015, after the Magistrate Judge issued the Report and Recommendation recommending denial of the First Amended Petition on the merits, Petitioner filed a letter with the Court in which she requests to "withdraw" her writ "without prejudice," explaining that she has "discovered new retroactive case law that will suit my petition substantially." Dkt. 47 ("Request for Voluntary Dismissal").
Petitioner's Request for Voluntary Dismissal is denied. See Terronova v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988) ("since the magistrate judge had already issued his report and recommendation when the motion [for voluntary dismissal] was filed, the district court's refusal to use its discretion to dismiss the [habeas] petition under Fed. R. Civ. P. 41(a)(2) is reasonable"). Although motions for voluntary dismissal should generally be granted unless there is some plain legal prejudice to the other side, see Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2010), Petitioner's failure to identify how any new case law will aid her petition raises the strong suspicion that Petitioner's Request is an effort to forestall an adverse ruling, see Maxum Indemnity Ins. Co. v. A-1 All American Roofing Co., 299 F. App'x 664, 666 (9th Cir. 2008) ("A district court may consider whether the plaintiff is requesting a voluntary dismissal only to avoid a near-certain adverse ruling."); Kiesz v. Spearman, No. 13-5674, 2014 WL 462864, at *1 (C.D. Cal. Feb. 4, 2014) (citing Terronova and Maxum to deny request for voluntary dismissal filed after Magistrate Judge recommended dismissal).
IT IS THEREFORE ORDERED that Judgment be entered denying the petition and dismissing this action with prejudice. Dated: August 16, 2015.
/s/_________
S. JAMES OTERO
United States District Judge