United States District Court, D. Hawaii
ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS
Derrick K. Watson, United States District Judge
Kevin Brown, proceeding pro se, filed a lawsuit in Molokai
District Court, State of Hawaii against Defendant Wells Fargo
Bank, National Association (“Wells Fargo”),
alleging purely state law claims based on credit card fraud
and requesting judgment in the amount of $15, 253. After
Brown filed an amended complaint that added alleged
violations of certain federal statutes, Wells Fargo removed
the action to federal court. In light of recent events,
including health and litigation cost concerns, Brown seeks to
dismiss his amended complaint without prejudice. Wells Fargo
does not oppose Brown's request to dismiss his amended
complaint, but contends that the dismissal should be with
prejudice. As set forth below, the Court GRANTS Brown's
Motion to Dismiss Without Prejudice.
December 23, 2015, Brown filed his original complaint in the
District Court of the Second Circuit, Molokai Division, State
of Hawaii (“Molokai District Court”). Dkt. No.
1-1 at 1. Brown alleged solely state law claims against Wells
Fargo based on credit card fraud and requested judgment in
the amount of $15, 253. Id. After Wells Fargo moved
to dismiss the complaint, the Molokai District Court ordered
Brown to file an amended complaint to address certain
deficiencies with his original complaint. Dkt. No. 1-7.
5, 2016, Brown filed his amended complaint (“First
Amended Complaint”), which alleged for the first time
federal claims against Wells Fargo. Dkt. No. 1-8. The amount
in controversy remained the same. Id. Thereafter, on
May 19, 2016, Wells Fargo removed the action to this Court
(Dkt. No. 1), based on federal question jurisdiction, and
filed its answer to the First Amended Complaint on May 23,
2016. Dkt. No. 7.
September 19, 2016, Brown filed a Motion to Dismiss Without
Prejudice (“Motion”). Dkt. No. 20. The Court held
a status conference to clarify the objective of the Motion,
at which time Brown explained that he sought dismissal of the
action without prejudice because it was not feasible to
litigate his claims in federal court at this time given his
current physical condition and the additional cost involved
in litigating on Oahu. Wells Fargo did not oppose the
dismissal, but asserted that dismissal should be with
prejudice. As instructed by the Court, Wells Fargo filed a
written memorandum explaining its position (Dkt. No. 23), to
which Brown replied (Dkt. No. 24).
41(a)(1) of the Federal Rules of Civil Procedure permits a
plaintiff to dismiss an action without a court order by
filing a notice of dismissal before the opposing party serves
either an answer or a motion for summary judgment. When, as
is the case here, an opposing party has served an answer, a
plaintiff may voluntarily dismiss an action only by court
Except as provided in Rule 41(a)(1), an action may be
dismissed at the plaintiff's request only by court order,
on terms that the court considers proper.
Fed. R. Civ. P. 41(a)(2). “A motion for voluntary
dismissal under Rule 41(a)(2) is addressed to the district
court's sound discretion . . . .” Stevedoring
Servs. of Am. v. Armilla Int'l B. V., 889 F.2d 919,
921 (9th Cir. 1989). “The purpose of the rule is to
permit a plaintiff to dismiss an action without prejudice so
long as the defendant will not be prejudiced, or unfairly
affected by dismissal.” Id. (internal citation
ruling upon a Rule 41(a)(2) motion to dismiss without
prejudice, the district court must first determine whether
the opposing party will suffer resultant legal
prejudice.” BlueEarth Biofuels, LLC v. Hawaiian
Elec. Co., Inc., No. CIV. 09-00181 DAE-KSC, 2011 WL
2938512, at *2 (D. Haw. July 18, 2011); see also Smith v.
Lenches, 263 F.3d 972, 975 (9th Cir. 2001) (“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.”
(internal citation omitted)). Legal prejudice is
“‘prejudice to some legal interest, some legal
claim, [or] some legal argument.'” Smith,
263 F.3d at 976 (quoting Westlands Water Dist. v. United
States, 100 F.3d 94, 97 (9th Cir. 1996)).
“Uncertainty because a dispute remains
unresolved” or “the threat of future litigation
which causes uncertainty” does not constitute legal
prejudice. Westlands Water Dist., 100 F.3d at 96-97.
“Also, plain legal prejudice does not result merely
because the defendant will be inconvenienced by having to
defend in another forum or where a plaintiff would gain a
tactical advantage by that dismissal.” Smith,
263 F.3d at 976.
seeks to dismiss his First Amended Complaint without
prejudice, explaining that litigating his claims in federal
court is not feasible at this time given the cost and his
health. Because Brown seeks dismissal of his claims without
prejudice, the Court must determine whether Wells Fargo will
suffer legal prejudice as a result of such dismissal.
BlueEarth Biofuels, LLC, 2011 WL 2938512 at *2.
determining whether dismissal should be with or without
prejudice, the Court considers the following factors: (1) the
defendant's effort and expense in preparing for trial;
(2) excessive delay and lack of diligence on the part of the
plaintiff in prosecuting the action; (3) insufficient
explanation of the need to take a dismissal; and (4) whether
summary judgment has been sought by the defendant. See
id. As set ...