United States District Court, D. Hawaii
ORDER GRANTING PLAINTIFFS' MOTION TO VOLUNTARILY
DISMISS COMPLAINT, ECF NO. 141
Michael Seabright Chief United States District Judge.
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 (joined by the Office of Hawaiian Affairs
Defendants) 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).
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
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.
F.3d at 1010-11. In any event, regardless of mootness or
ripeness, Plaintiffs seek to dismiss the action without
prejudice under Rule 41.
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
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.
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 ...