Julia Byfield and Gary Marx, Plaintiffs-appellees, v. International Business Machines Corporation, Defendant-appellant, 24 F.3d 245 (9th Cir. 1994)

Before: ALARCON, FERNANDEZ, Circuit Judges, and HILL,^**  District Judge.

MEMORANDUM^*** 

International Business Machines Corporation ("IBM") appeals from the district court's dismissal of this action without prejudice. IBM contends that the district court abused its discretion because the plaintiffs sought the dismissal to regain their previously waived right to a jury trial.

A motion for voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a) (2) is addressed to the sound discretion of the district court, and this Court will only reverse for an abuse of discretion. Bell v. City of Kellogg, 922 F.2d 1418, 1421 (9th Cir. 1991). A district court should grant a motion for voluntary dismissal without prejudice unless "the defendant will suffer some plain legal prejudice as a result of the dismissal." Hamilton v. Firestone Tire & Rubber Co., Inc., 679 F.2d 143, 145 (9th Cir. 1982). Plain legal prejudice requires more than the prospect of a second lawsuit or some tactical advantage to the plaintiff. Id.; see Lau v. Glendora Unified School Dist., 792 F.2d 929 (9th Cir. 1986) (no prejudice where plaintiff dismissed without prejudice to file similar action in state court after federal court refused to certify class action).

IBM made no showing of legal prejudice sufficient to require dismissal with prejudice. In fact, IBM does not even assert in its briefing that it suffered any prejudice. Further, the district court minimized any prejudice when it granted IBM its costs and attorney's fees incurred in defense of the first action, and ordered that any completed discovery could be used in a later-filed action.

There is no indication that the district court abused its discretion when it granted Byfield's motion to dismiss without prejudice.

AFFIRMED.