PLAINTIFF’S REQUEST FOR VOLUNTARY DISMISSAL WITH PREJUDICE PURSUANT TO FRCP 41(a)(2)

04/08/2024

Pursuant to Federal Rule of Civil Procedure 41(a)(2), Plaintiff Breaking Code
Silence (“BCS”) respectfully requests that the Court permit BCS to dismiss, with
prejudice, its Complaint against Defendants Katherine McNamara and Jeremy
Whiteley (“Defendants”).
“[A]n 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). But when a
plaintiff’s request for dismissal is with prejudice, some courts have held that the
dismissal is mandatory.1
In any event, “[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, 975
(9th Cir. 2001). Legal prejudice means “prejudice to some legal interest, some legal
claim, some legal argument.” Id. at 976. Neither “the expense incurred in
defending against a lawsuit” nor the “[u]ncertainty [that] a dispute remains
unresolved” amounts to legal prejudice. Westlands Water Dist. v. U.S., 100 F.3d 94,
97 (9th Cir. 1996). There is likewise no legal prejudice merely because “a plaintiff
would gain a tactical advantage by” dismissing the case. Smith, 263 F.3d at 975.
Given the posture of the litigation, Defendants’ pending motion for monetary
and evidentiary sanctions, and the outcome of the March 25, 2024, informal
discovery conference, BCS has concluded it is not feasible to proceed with the
litigation. Proceeding with the litigation under these circumstances would likely
force BCS into bankruptcy or other financial predicament that could end its
existence and prevent it from continuing its mission. This would deprive the
individuals for whom it advocates of its support. To be clear, BCS’ request is not in

any way an acknowledgement that its claims lack merit. BCS believes that it has
diligently prosecuted this litigation and put forth sufficient evidence to at least
survive the pending summary judgment motions, especially with reasonable
inferences from such evidence required to be drawn in the light most favorable to
BCS. BCS’ request is simply a product of the circumstances, which will render it
unable to afford the potential financial results of this litigation and continue its
mission.
Defendants will not suffer any prejudice—legal or otherwise—from a
dismissal. To the contrary, Defendants would no longer be required to defend this
litigation and would save the costs associated with doing so, including in connection
with drafting further sanctions briefing which the Court stated on April 5, 2024, will
be required, attending additional informal discovery conferences and hearings, and
preparing for trial. That Defendants have incurred attorney’s fees defending this
action thus far is not legal prejudice. See Westlands, 100 F.3d at 97. Nor would any
legal interest, claim, or argument of Defendants be prejudiced by dismissal,
particularly since the dismissal is with prejudice. Indeed, Defendants are plaintiffs
in a separate state court action against BCS and its representatives, and may
maintain their positions in that action.
Lastly, where, as here, the requested dismissal is with prejudice, awarding
Defendants attorney’s fees and costs is unwarranted. “Although courts often award
defendants costs and attorney fees when granting a plaintiff’s motion to dismiss
without prejudice under Rule 41(a)(2), such an award is improper when the
dismissal is with prejudice.” Chavez v. Huhtamaki, Inc., 2021 WL 4441976, at *3
(C.D. Cal. Sept. 28, 2021) (quotation omitted; emphasis in original); see also Design
Trend Int’l Interiors, Ltd. v. Huang, 2007 WL 2683790, at *4 (D. Ariz. Sept. 7,
2007) (“[Defendants] have provided no Ninth Circuit authority that a district court
may properly…dismiss [plaintiff’s] lawsuit with prejudice and also award[defendants] their costs and reasonable attorney’s fees incurred herein.”) (emphasis

in original). “The purpose of such awards is generally to reimburse the defendant
for the litigation costs incurred, in view of the risk (often the certainty) faced by
defendant that the same suit will be refiled and will impose duplicative expenses
upon him. Without such risk, attorney fees are unjustified.” U.S. v. Two Parcels of
Real Prop. Located in Mendocino Cnty., 2001 WL 1180698, at *2 (N.D. Cal. Sept.
27, 2001) (quotation and citation omitted).
BCS’ request is with prejudice because BCS has no reason or occasion to
reassert its claims from the Complaint against Defendants in another proceeding.
As a result, there is no risk of relitigation of the claims at issue and no risk that
Defendants will incur duplicative expenses. Thus, “attorney fees are unjustified.”