ORDER OF DISMISSAL

Re: ECF No. 36

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

The plaintiff moves to voluntarily dismiss this suit.1 Because the defendant has answered,2 the case "may be dismissed . . . only by court order," with or without prejudice, and "on terms that the court considers proper." Fed. R. Civ. P. 41(a)(1)-(2); see, e.g., Westlands Water Dist. v. United States, 100 F.3d 94, 96-97 (9th Cir. 1996). Both parties have consented to magistrate jurisdiction.3 The court held a hearing on March 31, 2017.4 The court now grants the plaintiff's motion and dismisses this case without prejudice.

STATEMENT

Plaintiff Adam Cronin works for defendant Pacific Gas & Electric (PG&E).5 In May 2016 Mr. Cronin filed this lawsuit pro se in the Superior Court of California for the County of San Francisco.6 He complained of employment discrimination related to his use of leave time for a "serious health condition."7 Citing federal-question jurisdiction under several federal statutes, PG&E removed the case to this court.8

The plaintiff has conducted some discovery. He has propounded one set of document requests. He has not answered written discovery that the defendant propounded. He has not been deposed. Furthermore, the defendant argues that it needs to depose other witnesses in order to flesh out the case and begin to prepare its defense.

The plaintiff now moves to voluntarily dismiss this suit. He states that he wishes to return to the administrative-grievance process in the California Department of Fair Employment and Housing.9 He explains that, while he was acting without an attorney, he "did not know . . . that he could have had the Department . . . conduct an investigation rather than proceeding directly to Superior Court."10 "At this point in time, Plaintiff . . . prefers to remediate using . . . [administrative] procedures rather than to litigate."11 He adds that he still wishes to preserve his career with PG&E.12

PG&E sees a problem in this. By backing out of this lawsuit now, PG&E argues, the plaintiff may effectively deny PG&E the benefits of discovery — after the plaintiff has availed himself of discovery. If the plaintiff were to refile this case in a California state court (bereft, presumably, of claims that would again support removal to federal court), then PG&E would surely have access to the usual discovery tools. If, on the other hand, Mr. Cronin returns his grievance to a California administrative forum (as he says that he prefers to do), then PG&E contends that it will not have access to the discovery tools that will allow it to investigate this dispute and start preparing its defense. It thus wants the plaintiff to respond to its outstanding paper discovery, and it wants to depose the plaintiff, his primary-care physician, and two additional witnesses.

ANALYSIS

1. Voluntary Dismissal

Because PG&E has answered, Mr. Cronin cannot voluntarily dismiss this case without court approval. See Fed. R. Civ. P. 41(a)(1)-(2). More specifically, this lawsuit can now be voluntarily dismissed "only by court order, on terms that the court considers proper." Fed. R. Civ. P. 41(a)(2). "Unless the order states otherwise," moreover, "a dismissal under this paragraph (2) is without prejudice." Id. "When ruling on a motion to dismiss without prejudice, the district court must determine whether the defendant will suffer some plain legal prejudice as a result of the dismissal." Westlands Water, 100 F.3d at 96 (citing cases). "Although case law does not articulate a precise definition of `legal prejudice,' the cases focus on the rights and defenses available to a defendant in future litigation." Id. at 97.

From PG&E's perspective, the case has persisted on the court's docket, and the plaintiff has availed himself of the mechanisms of discovery. But according to the plaintiff, this consisted of "one set of document requests" and apparently subpoenaing medical records."13 PG&E asserts that it should be allowed some counterpart investigation. It should be allowed to make some initial inquiry into this case so that it too can start to better understand the circumstances of this dispute — and thus begin to prepare its defense. If Mr. Cronin takes his grievance back to the state administrative forum, there appears to be a chance that PG&E will not have access to the same discovery tools that are a matter of course in judicial forums, and will thereby lose the power to investigate this dispute in the way that Mr. Cronin has already begun to. The Ninth Circuit has recognized that prejudice under Rule 41(a)(2) can consist in losing access to discovery. See Westlands Water, 100 F.3d at 97.14

That said, largely for the reasons advanced by the plaintiff at the hearing, the court — in the exercise of its discretion — concludes that leaving the parties in their pre-litigation positions would not prejudice PG&E sufficiently that the court will order discovery. The plaintiff began his lawsuit as a pro se litigant, but with counsel, his efforts have been aimed at settlement. Discovery to date has been modest perhaps because settlement was the aspiration. And the discovery that PG&E wants appears aimed at state claims that were in the pro se plaintiff's initial complaint (see ECF No. 1-1) but are not in the amended complaint that counsel filed (see ECF No. 32). Given the parties' ongoing employment relationship and the interactive process that they are pursuing (see ECF No. 42 at 2), discovery here — especially medical discovery — seems invasive and strategic. The statute of limitations also protects PG&E against serial litigation. Given the circumstances of this case, the court does not see prejudice to PG&E sufficient to order discovery.

The court will therefore grant the plaintiff's motion to dismiss this case without prejudice. (The court has considered PG&E's request to dismiss this case with prejudice but finds that request unpersuasive.)

2. Request for Judicial Notice

The plaintiff also asks the court to judicially notice a California state-court form pleading.15 Specifically, Mr. Cronin asks the court to notice a form "Request for Dismissal" of a case that carries the state-court caption and case number of this lawsuit; the form has been mostly completed, and has been signed by the plaintiff's attorney, but has not been filed.16 Mr. Cronin asks the court to "judicially notice the . . . form as one that would be effective to dismiss in San Francisco Superior Court without Defendant's permission or stipulation."17 The suggestion being that the plaintiff could dismiss, and perhaps would have dismissed, the state-court lawsuit had PG&E not "removed the action to federal court."18

The court partly grants the request for judicial notice. The court notices the form as one used for voluntary dismissals in the Superior Court of California. The form itself says that it has been "Adopted for Mandatory Use" by the "Judicial Council of California."19 (The latter council is the "policymaking body" of the California judicial branch.20) The court does not judicially notice whether in this case this form would successfully effect a dismissal from the state trial court. That seems a matter for legal argument. It is an uncomplicated question, maybe, but it is not one that can be summarily resolved, and by the shortcut of judicial notice, from the face of this form.

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CONCLUSION

The plaintiff's motion is granted. The court will dismiss this case without prejudice.

IT IS SO ORDERED.