Opinion
2:20-cv-04499-ODW (GJS)
12-07-2021
GARY L. KILBOURN, Petitioner v. WARDEN, Respondent.
ORDER DISMISSING THIS ACTION WITHOUT PREJUDICE PURSUANT TO PETITIONER'S REQUEST [DOCKET NO. 32]
OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE.
On April 5, 2021, Respondent filed an answer to the 28 U.S.C. § 2254 habeas petition filed in this action. [See Docket Nos. 1 (“Petition”) and 23 (“Answer”).] Pursuant to the Court's Order of October 8, 2020 [Docket No. 12], Petitioner's Reply to the Answer was due by June 4, 2021, but Petitioner filed a request for an extension of time on that date, which was granted. Although Petitioner's time to file a Reply was extended to August 3, 2021, he did not do so. On October 28, 2021, United States Magistrate Judge Gail J. Standish issued a Report and Recommendation, in which she recommended that the Petition be denied and this action be dismissed with prejudice. [Docket No. 31.] Objections were due by November 22, 2021. [Docket No. 30.]
No Objections to the Report and Recommendation have been filed. Rather, on November 29, 2021, Petitioner filed a “Motion to Dismiss Petition for Habeas Corpus.” [Docket No. 32, “Motion.”] In the Motion, Petitioner seeks leave to “withdraw” the Petition and dismiss this case.
Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure provides that a plaintiff may dismiss an action without a court order before the opposing party serves either an answer or a motion for summary judgment or if the parties have stipulated to a dismissal. As Respondent filed an Answer in this case and no stipulation to dismiss this case is before the Court, Petitioner may voluntarily dismiss this case only by way of court order “on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2); see also Westlands Water District v. United States, 100 F.3d 94, 96 (9th Cir. 1996) (Rule 41(a)(2) “allows a plaintiff, pursuant to an order of the court and subject to any terms and conditions the court deems proper, to dismiss the action without prejudice at any time”). Whether to allow dismissal under Rule 41(a)(2) is within the Court's discretion. Id. The general policy is to allow dismissal unless the opposing party will suffer some form of legal prejudice as a result. See Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982). The threat of defending against a second lawsuit in the future does not constitute legal prejudice. Id.; see also Smith v. Lenches, 263 F.3d 972, 976 (9th Cir. 2001).
The Court has not reviewed the Petition, the Answer, or the Magistrate Judge's Report and Recommendation and, therefore, has not formed any opinion on the question of whether habeas relief should be granted or denied. There is no apparent reason in the record to deny Petitioner's request voluntarily dismiss this action. Accordingly, IT IS ORDERED that this action is dismissed without prejudice pursuant to Rule 41(a)(2). Judgment shall be entered accordingly.