United States v. Kiyoko Ito

472 F. App'x 841

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 14, 2012
• Docket: 10-56409
• Status: Unpublished

Opinion

MEMORANDUM **

Glenn and Kiyoko Ito appeal the district court’s dismissal without prejudice of the government’s civil forfeiture action. We vacate the district court’s dismissal be cause it was based on an erroneous understanding of the law.

“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 Dist. v. United States, 100 F.3d 94, 96 (9th Cir.1996). The district court abuses its discretion when it bases its decision on an erroneous view of the law. See id.

The district court did not recognize that dismissal without prejudice precludes prevailing party status. See Cadkin v. Loose, 569 F.3d 1142, 1149 (9th Cir.2009); Oscar v. Alaska Dep’t of Educ. & Early Dev., 541 F.3d 978, 981 (9th Cir.2008); see also Miles v. California, 320 F.3d 986, 989 (9th Cir.2003). Without prevailing party status, the Itos were unable to bring their attorney’s fees motion under the Civil Asset Forfeiture Reform Act, 28 U.S.C. § 2465(b)(1) (2000). The Itos suffered plain legal prejudice in losing their ability to move for attorney’s fees.

We VACATE the district court’s dismissal without prejudice and REMAND with instructions to dismiss with prejudice.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.