Opinion
No. 2:12-cv-1548 TLN DAD PS
01-10-2014
GREGORY FARR, Plaintiff, v. FEDEX OFFICE AND PRINT SERVICES, INC., Defendant.
ORDER
On October 11, 2013, the parties appeared before the court for hearing on defendant's motion for summary judgment. At that hearing plaintiff requested that this action be voluntarily dismissed without prejudice. Counsel for defendant stated that he had no objection to plaintiff's request. On October 16, 2013, plaintiff was ordered to file a notice of his request for voluntary dismissal of this action. (Dkt. No. 36.)
On October 17, 2013, plaintiff complied with the court's directive and filed a notice of his request for voluntary dismissal of this action without prejudice. (Dkt. No. 37.) On October 25, 2013, in light of defendant's statement of non-opposition, the court issued an order dismissing this action without prejudice and closing this action. (Dkt. No. 38.) That same day, defendant submitted a bill of costs, seeking from plaintiff $2,793.91. (Dkt. No. 39.)
In stating his lack of objection to plaintiff's request for voluntary dismissal without prejudice at the October 11, 2013, defense counsel did not express any intention of submitting a bill of cost.
The court dismissed this action pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. Under Rule 41(a)(2), "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 and the court's order will not be disturbed unless the court has abused its discretion." Stevedoring Services of America v. Armilla Intern. B.V., 889 F.2d 919, 921 (9th Cir. 1989). See also Hargis v. Foster, 312 F.3d 404, 412 (9th Cir. 2002) ("Rule 41 vests the district court with discretion to dismiss an action at the plaintiff's instance upon such terms and conditions as the court deems proper.").
Here, the issue of defendant's costs was not before the court prior to the granting of plaintiffs unopposed request for voluntary dismissal. Under the circumstances of this case, the court does not consider the imposition of costs in response to plaintiffs unopposed request for voluntary dismissal to be just or proper. Imposition of costs pursuant to the bill of costs submitted by defendant will, therefore, be denied. See Westlands Water Dist. v. U.S., 100 F.3d 94, 97 (9th Cir. 1996) ("Imposition of costs and fees as a condition for dismissing without prejudice is not mandatory however."); see also Stevedoring, 889 F.2d at 921 ("Although costs and attorney fees are often imposed upon a plaintiff who is granted a voluntary dismissal under Fed. R. Civ. P. 41(a)(2), no circuit court has held that payment of the defendant's costs and attorney fees is a prerequisite to an order granting voluntary dismissal."); Clerisy Corp. v. Airware Holdings, Inc., No. CV 12-2110 PHX PGR, 2013 WL 6252428, at *3 (D. Ariz. Dec. 4, 2013) ("While the Court agrees with Defendants that it retains the discretion to condition dismissal on an award of attorneys' fees, it finds no basis to do so here."); Chang v. Pomeroy, No. CIV S-08-0657 FDC DAD PS, 2011 WL 618192, at *1 (E.D. Cal. Feb. 10, 2011) ("a court cannot impose fees and costs as a condition of voluntary dismissal absent some basis other than the mere fact of the plaintiff's request"); Bader v. Electronics for Imaging, Inc., 195 F.R.D. 659, 665 (N.D. Cal. 2000) ("This court declines to exercise its discretion to impose attorneys' fees and costs.").
Accordingly, IT IS HEREBY ORDERED that defendant's October 25, 2013 bill of costs (Dkt. No. 39) is denied.
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DALE A. DROZD
UNITED STATES MAGISTRATE JUDGE