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Akina v. State

United States District Court, D. Hawaii

November 30, 2016

KELI'I AKINA, et al., Plaintiff,
v.
THE STATE OF HAWAII, et al., Defendants.

          ORDER GRANTING PLAINTIFFS' MOTION TO VOLUNTARILY DISMISS COMPLAINT, ECF NO. 141

          J. Michael Seabright Chief United States District Judge.

         I. INTRODUCTION

         Plaintiffs Keli'i Akina, Kealii Makekau, Joseph Kent, Yoshimasa Sean Mitsui, Pedro Kana'i Gapero, and Melissa Leina'ala Moniz (collectively, “Plaintiffs”) move pursuant to Federal Rule of Civil Procedure 41(a)(2) to voluntarily dismiss their Complaint without prejudice. ECF No. 141. Defendants the Akamai Foundation and Na'i Aupuni, and the State Defendants[1] (joined by the Office of Hawaiian Affairs Defendants[2]) have each filed oppositions, arguing that dismissal should be with prejudice and/or dismissal should be conditioned on Plaintiffs' payment of fees and costs. ECF Nos. 143-45. The court decides the Motion without an oral hearing under Local Rule 7.2(d).

         II. BACKGROUND

         The court need not set forth the procedural history of this case, which involved extensive proceedings on Plaintiffs' Motion for Preliminary Injunction and is detailed in several published decisions. See Akina v. Hawaii, 141 F.Supp.3d 1106 (D. Haw. 2015) (denying motion for preliminary injunction); Akina v. Hawaii, 136 S.Ct. 581 (2015) (granting injunction in part); Akina v. Hawaii, 835 F.3d 1003 (9th Cir. 2016) (affirming in part and dismissing appeal as moot in part). What is important now, however, is that the subject election was cancelled, no related election or vote is pending, and Defendant Na'i Aupuni has been dissolved. The court also takes judicial notice that Plaintiff Keli'i Akina was recently elected as an Office of Hawaiian Affairs Trustee, where such Trustees in their official capacities are Defendants in this action.[3]

         Although the Motion does not ask the court to determine whether this suit is now moot (or is no longer ripe), the court agrees with the Ninth Circuit's reasoning when it dismissed Plaintiffs' interlocutory appeal:

It is possible . . . that a different group of individuals who are not parties to this case will try to hold a ratification election with private and public funds. No such vote, however, has been scheduled, and it is unclear what shape it would take. Any opinion by this court at this juncture would amount to an impermissible advisory opinion that would, at most, guide any future ratification efforts.

         835 F.3d at 1010-11. In any event, regardless of mootness or ripeness, Plaintiffs seek to dismiss the action without prejudice under Rule 41.

         III. DISCUSSION

         Rule 41(a)(2) provides, in pertinent part:

(a) Voluntary Dismissal.
(2) By Court Order; Effect. 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. . . . Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.

         “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.” Smith v. Lenches, 263 F.3d 972, 976 (9th Cir. 2001) (citations omitted). “‘[L]egal prejudice' means ‘prejudice to some legal interest, some legal claim, some legal argument.'” Id. (quoting Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996)). “‘[U]ncertainty because a dispute remains unresolved' or because ‘the threat of future litigation . . . causes uncertainty' does not result in plain legal prejudice.” Id. (quoting 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.” Id. (citing Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982)). Furthermore, “the expense incurred in defending against a lawsuit does not amount to legal prejudice.” Westlands Water Dist., 100 F.3d at 97.

         The State and OHA Defendants do not oppose dismissal, but contend that dismissal should be with prejudice (not without), arguing that “Plaintiffs should not be permitted to resort to Rule 41 so they can refile their claims later. In light of the history of this case, it would be grossly inequitable and prejudicial to State Defendants to allow Plaintiffs to potentially refile this action in the future.” State Defs.' Response at 4, ECF No. 144. Likewise, Defendants Na'i Aupuni and the Akamai Foundation contend that dismissal without prejudice is improper --they seek fees and costs under Rule 41, reasoning in part that this is a “situation[] where the ...


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