Filed: Oct. 28, 2019
Latest Update: Oct. 28, 2019
Summary: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE ANDR BIROTTE, JR. , District Judge . Pursuant to 28 U.S.C. 636, the Court has reviewed the Petition, all pleadings and other documents filed in this action, and the Report and Recommendation of United States Magistrate Judge [Dkt. 18, "Report"]. The time for filing Objections to the Report has passed, and no Objections have been received by the Court. Rather than file Objections to the Report, in response, Pe
Summary: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE ANDR BIROTTE, JR. , District Judge . Pursuant to 28 U.S.C. 636, the Court has reviewed the Petition, all pleadings and other documents filed in this action, and the Report and Recommendation of United States Magistrate Judge [Dkt. 18, "Report"]. The time for filing Objections to the Report has passed, and no Objections have been received by the Court. Rather than file Objections to the Report, in response, Pet..
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ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
ANDRÉ BIROTTE, JR., District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all pleadings and other documents filed in this action, and the Report and Recommendation of United States Magistrate Judge [Dkt. 18, "Report"]. The time for filing Objections to the Report has passed, and no Objections have been received by the Court.
Rather than file Objections to the Report, in response, Petitioner has filed a letter asking that the case be dismissed without prejudice [Dkt. 19, "Request"]. Petitioner asks that this case be dismissed without prejudice so that he can "refile" the Petition.
Voluntary dismissal of this action, pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, is not appropriate given that Respondent has answered the Petition. Under Rule 41(a)(2), Petitioner may dismiss this action without prejudice only if the Court orders such dismissal. Whether to allow such a dismissal is within this Court's discretion. Wetlands Water District v. United States, 100 F.3d 94, 96 (9th Cir. 1996). In its discretion, the Court declines to allow this action to be dismissed without prejudice. Petitioner did not seek dismissal until after Respondent had expended time and effort in responding to the Petition and the Magistrate Judge had expended substantial time and effort analyzing Petitioner's claims and concluded that they do not warrant relief. It is inappropriate for Petitioner to wait until he knows how the Court is likely to rule and then seek what amounts to an attempted do-over, apparently hoping he might get a more favorable result when he re-files the Petition. Moreover, any re-filed Petition will be untimely (absent tolling of some sort).
Petitioner's claims were timely when filed in this action and have been briefed, analyzed, and resolved against him. There is no legitimate reason to allow him to dismiss this case at this belated juncture and start over by re-filing an untimely Petition, thereby subjecting both Respondent and the Court to duplicative efforts on a case that has been resolved. Accordingly, the Request is DENIED.1
Having completed its review, the Court accepts the findings and recommendations set forth in the Report. Accordingly, IT IS ORDERED that: (1) the Petition is DENIED; and (2) Judgment shall be entered dismissing this action with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
