Opinion
CIV S-04-2192 DFL KJM PS.
August 29, 2006
ORDER
Plaintiff has requested that this action be dismissed without prejudice. Defendant opposes plaintiff's request. Plaintiff's request to dismiss without prejudice is made under Federal Rule of Civil Procedure 41(a). In considering plaintiff's request, the court has considered defendant's effort and expense in preparing for trial, any delay and lack of diligence in prosecuting this action, and whether plaintiff's explanation for seeking dismissal at this juncture is insufficient. See Williams v. Peralta Cmty. College Dist., 227 F.R.D. 538, 540 (N.D. Cal. 2005). At this point, defendant Providian has not yet been put to the expense of preparing for trial, although it has incurred the costs of answering the complaint and moving for judgment on the pleadings. Although plaintiff has not prosecuted this action with complete diligence, it appears that plaintiff's legitimate medical problems often have interfered with plaintiff's ability to appropriately pursue this action. Moreover, plaintiff's reply sets forth sufficient explanation for why plaintiff seeks dismissal at this time. Plaintiff also has submitted evidence in connection with the reply that may be sufficient to support some cause of action against defendant Providian if amendment of the complaint were allowed. Under these circumstances, plaintiff's request to dismiss shall be honored.See Federal Rule of Civil Procedure 41(a)(2). An award to defendant for costs and attorney's fees is not warranted.
Accordingly, IT IS HEREBY ORDERED that this action is dismissed without prejudice.