FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YOUSSIF KAMAL; GILLIAN 

NEELY; RICHARD LICHTEN; 

SUSAN COX; NICK TOVAR; 

MICHELE KINMAN; TERI 

BROWN, on their own behalf and on 

behalf of all others similarly situated, 

Plaintiffs-Appellants,

 v. 

EDEN CREAMERY, LLC, DBA Halo 

Top Creamery; JUSTIN T. 

WOOLVERTON, 

Defendants-Appellees.

No.21-56260 

D.C. No. 

3:18-cv-01298-

TWR-AGS 

OPINION

Appeal from the United States District Court

for the Southern District of California

Todd W. Robinson, District Judge, Presiding

Argued and Submitted December 5, 2022

Pasadena, California

Filed December 21, 2023

Before: Marsha S. Berzon, Ryan D. Nelson, and Bridget S. 

Bade, Circuit Judges.
2 KAMAL V. EDEN CREAMERY, LLC

Opinion by Judge Bade;

Partial Concurrence and Partial Dissent by Judge R. Nelson

SUMMARY*

Jurisdiction / Amended Complaint

The panel affirmed in part and reversed in part the 

district court’s dismissal of plaintiffs’ complaint alleging 

that Eden Creamery, LLC underfilled its pints of ice cream.

The district court denied plaintiffs’ motion for leave to 

file a second amended complaint in order to add a new theory 

of liability (fraud by omission) and a new defendant (Wells 

Enterprises), and their subsequent motion to voluntarily 

dismiss their putative class action complaint without 

prejudice. After denying plaintiffs’ motions, the district 

court dismissed plaintiffs’ individual claims with prejudice 

and the class claims without prejudice.

As an initial matter, the panel rejected defendants’ 

contention that there was no jurisdiction to review the 

district court’s order denying plaintiffs leave to file a second 

amended complaint. After the district court entered its final 

order of dismissal with prejudice and plaintiffs appealed, the 

earlier, non-final order denying plaintiffs’ motion for leave 

to file a second amended complaint merged with the 

judgment and became appealable.

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
KAMAL V. EDEN CREAMERY, LLC 3

Turning to the merits, the panel held that plaintiffs failed 

to show good cause, as required by Fed. R. Civ. P. 16(b), to 

amend their complaint to add Wells Enterprises as a 

defendant and a new theory of fraud by omission. However, 

the district court abused its discretion by denying plaintiff’s 

motion to dismiss without prejudice, and instead dismissing 

with prejudice, because defendants failed to demonstrate that 

they would suffer legal prejudice if the case were dismissed 

without prejudice. 

Accordingly, the panel remanded with instructions to 

dismiss the action without prejudice. Because a district 

court can award costs and attorney’s fees as a condition of 

dismissal without prejudice under Fed. R. Civ. P. 41(a)(2), 

the panel directed the district court to consider whether any 

terms should be imposed as a condition of dismissal, such as 

an appropriate amount of costs and fees.

Concurring in part and dissenting in part, Judge R. 

Nelson concurred in Section IV of the majority opinion 

(affirming the district court’s holding that plaintiffs failed to 

show good cause to amend their complaint) and Section V.E 

(holding that fees and costs may be awarded as conditions of 

a Rule 41 voluntary dismissal). He dissented from Sections 

V.A-D because he would hold that defendants have shown a 

proper legal interest to warrant dismissal with prejudice.
4 KAMAL V. EDEN CREAMERY, LLC

COUNSEL

Andrew J. Brown (argued) and Brian J. Ellsworth, Law 

Offices of Andrew J. Brown, San Diego, California, for 

Plaintiffs-Appellants.

Dale J. Giali (argued), Keri E. Borders, King and Spalding 

LLP, Los Angeles, California; Daniel D. Queen, Mayer 

Brown LLP, Los Angeles, California; Kevin S. Ranlett, 

Mayer Brown LLP, Washington, D.C.; for DefendantsAppellees.

OPINION

BADE, Circuit Judge:

Plaintiffs-Appellants Youssif Kamal, Gillian Neely, 

Richard Lichten, Susan Cox, Nick Tovar, Michele Kinman,

and Teri Brown (collectively, Plaintiffs) appeal the district 

court’s orders denying their motion for leave to file a second 

amended complaint and their subsequent motion to

voluntarily dismiss their putative class action complaint 

without prejudice. After denying Plaintiffs’ motions, the 

district court dismissed Plaintiffs’ individual claims with 

prejudice and the class claims without prejudice. On appeal, 

Plaintiffs argue that the district court abused its discretion by 

finding that they were not diligent and therefore denying 

their motion to file a second amended complaint, and by 

denying their motion for voluntary dismissal without 

prejudice when Defendants-Appellants, Eden Creamery, 

LLC and Justin Woolverton (collectively, Defendants),

failed to demonstrate that they would suffer legal prejudice 

if the case were dismissed without prejudice. We conclude 
KAMAL V. EDEN CREAMERY, LLC 5

that the district court did not abuse its discretion by denying 

the motion to file a second amended complaint, but because 

Defendants did not show legal prejudice as our case law 

requires, the district court abused its discretion by denying 

Plaintiffs’ motion for dismissal without prejudice. 

Accordingly, we affirm in part, reverse in part, and remand.

I

At the time Plaintiffs filed their initial complaint, Eden 

Creamery owned and manufactured Halo Top, a low-calorie 

ice cream sold by the pint. This case arises from complaints 

that the pints were not completely full when purchased. 

Several of the named plaintiffs—before filing this lawsuit—

complained directly to Defendants about this problem, and

Defendants explained that “at some point in the supply 

chain, the ice cream slightly melts and then refreezes,” 

causing “the ice cream [to] condense[] down, leaving space 

inside the pint.” Defendants maintained this explanation 

throughout this case and on appeal, asserting that “a pint of 

Halo Top might appear less than full when opened [because] 

of a latent chemical reaction known as ‘shrinkage’ that 

impacts all ice cream.”

Apparently unsatisfied with this explanation, Plaintiffs

filed their initial class action complaint against Eden 

Creamery in June 2018. The theory behind Plaintiffs’ 

complaint was that Eden Creamery “underfills” its pints of 

Halo Top, so while Plaintiffs “paid for a full pint,” they “did 

not receive a full pint.”

After Eden Creamery moved to dismiss, Plaintiffs filed 

their first amended complaint “as a matter of course” in 

September 2018, asserting various state law fraud, consumer 

protection, and unfair business practice claims. See Fed. R. 

Civ. P. 15(a)(1). The first amended complaint included 
6 KAMAL V. EDEN CREAMERY, LLC

additional factual details, added several causes of action, and 

named Justin Woolverton, Halo Top’s CEO, as a defendant, 

but its key allegations remained the same, reiterating the

“underfilled” theory advanced in the initial complaint.

Defendants again moved to dismiss, arguing, among 

other things, that Plaintiffs’ underfilling theory was factually 

unsound. Defendants argued that their pints were “filled to 

maximum capacity” and “the alleged, random product 

shrinkage, if any, resulted from alleged handling by third 

parties, such as distributors, retailers, or consumers.”

The district court largely denied the motion to dismiss, 

concluding that Plaintiffs plausibly alleged their underfilling 

theory. However, the court dismissed any “fraud by 

omission claim,” finding that although Plaintiffs’ fraud 

claim “nominally refer[red] to alleged omissions,” Plaintiffs

failed to describe any omissions. Shortly thereafter, the 

court, with input from the parties, entered a scheduling order 

setting November 1, 2019, as the deadline “to join other 

parties [or] to amend the pleadings.”

During discovery, Plaintiffs’ theory of liability changed. 

Plaintiffs shifted from the “underfilled” theory to a “fraud by 

omission” theory. Under this new theory, the problem with 

the ice cream was not that the pints were underfilled at the 

time of manufacturing, but that Halo Top was “inherently 

defective.” According to Plaintiffs, Halo Top’s ingredients 

and production methods render the product extremely 

vulnerable “to changes in temperature and altitude,” such 

that it cannot “withstand the ordinary distribution and retail 

practices within the ice cream industry.” Under Plaintiffs’ 

new theory, Defendants intentionally concealed this defect

and failed to inform their customers “that there was a 
KAMAL V. EDEN CREAMERY, LLC 7

substantial risk that the Halo Top ice cream pint would be 

underfilled” at the time of purchase.

On June 25, 2020, approximately six weeks before the 

deadline to complete discovery and eight months after the 

deadline to amend the pleadings, Plaintiffs moved to amend 

their complaint to incorporate this new theory and to add 

Wells Enterprises, the company that purchased Halo Top 

from Eden Creamery, as a defendant. The district court 

denied the motion in December 2020, concluding that 

(1) Plaintiffs were not diligent in seeking leave to file their 

proposed second amended complaint and therefore failed to 

show “good cause” to extend the deadline to amend the 

pleadings, and (2) allowing amendment would prejudice 

Defendants because discovery would have to be reopened, 

which would increase the cost of litigation and delay

resolution of the case.

Shortly after the court denied the motion to file a second 

amended complaint, Plaintiffs moved to voluntarily dismiss 

their claims without prejudice under Federal Rule of Civil 

Procedure 41(a)(2). They candidly acknowledged that they 

sought dismissal to pursue their new fraud theory “in a 

separate lawsuit.” Defendants did not oppose dismissal, but 

they requested that the district court dismiss the case with 

prejudice or impose several conditions for dismissal without 

prejudice, including barring Plaintiffs from pursuing claims 

in a new case based on the “underfilling” theory, requiring 

Plaintiffs to pay some of Defendants’ attorney’s fees, 

limiting discovery in the new case, and requiring that the 

new case be assigned to the same judge.

After a hearing and supplemental briefing, the district 

court denied the motion for voluntary dismissal without 

prejudice. The court concluded that dismissing the action 
8 KAMAL V. EDEN CREAMERY, LLC

without prejudice “would result in legal prejudice to

Defendants.” In the court’s view, Plaintiffs’ motion for

dismissal without prejudice was “intended to negate” the 

court’s prior denial of leave to amend, and the court reasoned 

that “[i]f allowing Plaintiffs to file the Proposed Second 

Amended Complaint in this action would be prejudicial to

Defendants, then permitting Plaintiffs to file the Proposed 

Second Amended Complaint as a new lawsuit would be 

similarly prejudicial.” The court also concluded that 

Plaintiffs had essentially asked the court “to employ the 

discretion granted in Rule 41(a)(2) to accomplish indirectly” 

what the court “held cannot be accomplished directly under 

Rule 16(b)”—extend the scheduling order’s deadline to 

amend the pleadings without a showing of good cause.

The district court advised Plaintiffs that they could either 

accept dismissal with prejudice or continue litigating the 

action in the district court based on the first amended 

complaint. Plaintiffs informed the court that they did “not 

intend to continue litigating” the action in the district court,

and the court dismissed Plaintiffs’ individual claims with 

prejudice and the putative class claims without prejudice. 

Plaintiffs timely appealed.

II

We review for an abuse of discretion a district court’s 

denial of leave to amend pleadings, Branch Banking & Tr. 

Co. v. D.M.S.I., LLC, 871 F.3d 751, 760 (9th Cir. 2017), and 

its decision on a motion for voluntary dismissal, Westlands 

Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996).

III

As an initial matter, we must address Defendants’ 

contention that we lack jurisdiction to review the district 
KAMAL V. EDEN CREAMERY, LLC 9

court’s order denying Plaintiffs’ motion for leave to file a 

second amended complaint. Defendants agree that we have 

jurisdiction to review the district court’s order denying 

Plaintiffs’ motion for dismissal without prejudice, but they 

argue that Plaintiffs “cannot also appeal the earlier 

interlocutory denial of leave to amend.” Defendants argue 

that allowing such an appeal would circumvent the 

discretionary certification process for interlocutory appeals 

under 28 U.S.C. § 1292(b).

1

This argument fails because Plaintiffs are not appealing 

from an interlocutory order. Instead, Plaintiffs are appealing 

the district court’s final order dismissing their claims with 

prejudice. See 28 U.S.C. § 1291 (courts of appeals “have 

jurisdiction of appeals from all final decisions of the district 

courts”). And while “[a]n order denying leave to amend a 

complaint is not appealable,” Hall v. City of Los Angeles, 

697 F.3d 1059, 1070 (9th Cir. 2012), that is because “[s]uch 

orders, as a class, contemplate further proceedings in the 

district court,” and “review is available after the final 

judgment, into which they merge,” id. (quoting Bradshaw v. 

Zoological Soc’y of San Diego, 662 F.2d 1301, 1304 (9th 

Cir. 1981)). Here, after the district court entered its final

order of dismissal with prejudice and Plaintiffs appealed, the 

1 Section 1292(b) provides a mechanism for a discretionary appeal of an 

interlocutory order. The statute provides that if a district judge concludes 

that an order entered in a civil case, which is not otherwise appealable,

“involves a controlling question of law as to which there is substantial 

ground for difference of opinion and that an immediate appeal from the 

order may materially advance the ultimate termination of the litigation,” 

the judge “shall so state” in that order. 28 U.S.C. § 1292(b). The court 

of appeals “may . . . in its discretion, permit an appeal to be taken from 

such order, if application is made to it within ten days after the entry of 

the order.” Id.
10 KAMAL V. EDEN CREAMERY, LLC

earlier, non-final order denying Plaintiffs’ motion for leave 

to file a second amended complaint “merge[d] with the 

judgment” and became reviewable. Id. (“An appeal from a 

final judgment draws in question all earlier, non-final orders 

and rulings which produced the judgment.” (quoting 

Litchfield v. Spielberg, 736 F.2d 1352, 1355 (9th Cir. 

1984))).

Defendants also argue that because Plaintiffs moved for 

voluntary dismissal after the district court denied leave to 

file a second amended complaint, we lack jurisdiction to hear 

an appeal of that order because Plaintiffs’ tactics are akin to 

the “voluntary-dismissal tactic” that the Supreme Court 

rejected in Microsoft Corp. v. Baker, 582 U.S. 23, 37 (2017). 

This argument fails because, unlike in Microsoft, the 

plaintiffs here did not seek a voluntary dismissal with 

prejudice to generate a final judgment for the purpose of 

appealing the earlier interlocutory order.

In Microsoft, after the district court struck the plaintiffs’ 

class allegations from the complaint, and the court of appeals 

denied a permissive interlocutory appeal of that order under 

Federal Rule of Civil Procedure 23(f), the plaintiffs 

voluntarily dismissed their claims with prejudice, but 

reserved the right to revive their claims if the court of appeals 

reversed the district court’s denial of class certification. 582 

U.S. at 27, 33–35. The Court rejected this “tactic” and held 

that a voluntary dismissal with prejudice, after the denial of 

a permissive interlocutory appeal under Rule 23(f), is not a 

final appealable decision under § 1291.

2 Id. at 37. The 

2 In 1998, the Court approved Rule 23(f), which authorizes “permissive 

interlocutory appeal” of class certification orders at the discretion of the 

courts of appeals. Microsoft, 582 U.S. at 30. Rule 23(f) was “[s]een as 
KAMAL V. EDEN CREAMERY, LLC 11

Court explained that allowing such an appeal would severely 

undermine “Rule 23(f)’s careful calibration” and “Congress’ 

designation of rulemaking as the preferred means for 

determining whether and when prejudgment orders should 

be immediately appealable.” Id. at 40 (citation and internal 

quotation marks omitted). Further, the Court stated that it 

was of “prime significance” that the plaintiffs’ “dismissal 

tactic undercuts Rule 23(f)’s discretionary regime.” Id. at 39 

(citation omitted). In addition, Microsoft emphasized that 

this dismissal tactic “invites protracted litigation and 

piecemeal appeals” by giving the plaintiff exclusive control 

over “the decision whether an immediate appeal will lie.” Id.

at 37; see also id. at 41–42 (expressing concern over the 

“one-sidedness” of such a tactic).

Here, the district court dismissed the case with prejudice 

over Plaintiffs’ objection. Plaintiffs never sought dismissal 

with prejudice; instead, they sought dismissal without

a response to” Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), in 

which the Court rejected the “death-knell” doctrine that had allowed an 

appeal as of right, in some circumstances, of an order denying class 

certification. Id. at 27–28, 30. The Court recognized that after Coopers 

& Lybrand, “a party seeking immediate review of an adverse classcertification order had no easy recourse.” Id. at 30. The Federal Rules 

of Civil Procedure did not provide for appeals of interlocutory orders in 

class actions, so parties were limited to seeking a discretionary appeal 

under § 1292(b) or a writ of mandamus. Id. Therefore, pursuant to 

§ 1292(e), which authorizes the Court to promulgate rules for appeals 

from interlocutory orders “not otherwise provided for” in § 1292, the 

Court approved Rule 23(f). Id. at 30–31 (quoting 28 U.S.C. § 1292(e)). 

The Court further explained that Rule 23(f) “was the product of careful 

calibration” that sought to provide “greater protection against 

improvident certification decisions than § 1292(b)” offered, while 

avoiding the possible abuse and increased delay and expense of allowing 

an appeal as of right from interlocutory class certification orders. Id. at 

31–32 (citation omitted).
12 KAMAL V. EDEN CREAMERY, LLC

prejudice, which would not have resulted in a final 

appealable order. See Wakefield v. Thompson, 177 F.3d 

1160, 1162 (9th Cir. 1999) (“[D]ismissals with prejudice 

generally constitute final orders, while dismissals without 

prejudice generally do not.”). Plaintiffs thus never sought to 

employ the dismissal tactic at issue in Microsoft.

Considering their appeal of the denial of the motion to 

amend alongside their appeal from the dismissal with 

prejudice does not raise the concerns articulated in Microsoft

relating to the use of voluntary dismissals as an end-run 

around the rules against interlocutory appeals. Therefore, 

we have jurisdiction to review the district court’s denial of 

Plaintiffs’ motion for leave to file a second amended

complaint.

IV

Having confirmed our jurisdiction, we consider whether 

the district court abused its discretion by denying Plaintiffs’ 

motion to file a second amended complaint. When a district 

court enters a pretrial scheduling order establishing a 

deadline for amending the pleadings, as the court did here, a 

motion to amend is governed by Rule 16(b). Johnson v. 

Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 

1992). Under Rule 16(b), a plaintiff “must show good 

cause” for failing to amend the complaint “before the time 

specified in the scheduling order expired.” Coleman v. 

Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). The 

good cause standard “primarily considers the diligence of the 

party seeking the amendment.” In re W. States Wholesale 

Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013)

(quoting Johnson, 975 F.2d at 609). “Although the existence 

or degree of prejudice to the party opposing the modification 

might supply additional reasons to deny a motion, the focus 

of the inquiry is upon the moving party’s reasons for seeking 
KAMAL V. EDEN CREAMERY, LLC 13

modification,” and “[i]f that party was not diligent, the 

inquiry should end.” Johnson, 975 F.2d at 609.

This issue raises two questions: (1) whether Plaintiffs 

established good cause to amend their complaint to add 

Wells Enterprises as a defendant, and (2) whether Plaintiffs 

established good cause to amend their complaint to allege 

the new theory of fraud by omission. We address each in 

turn.

A

Applying the Rule 16(b) good cause standard, we 

conclude the district court did not abuse its discretion in

finding that Plaintiffs were not diligent in seeking to add 

Wells Enterprises as a defendant. The district court correctly 

observed that Plaintiffs were on notice that Defendants sold 

Halo Top to Wells Enterprises eight months before Plaintiffs 

moved to file a second amended complaint on June 25, 2020. 

On October 8, 2019—even before the November 1, 2019,

deadline to amend the pleadings—Defendants disclosed the 

sale in the parties’ joint discovery plan. And as the district 

court recognized, Plaintiffs referred to the sale in their own 

filings, confirming they were on notice. Nevertheless, 

Plaintiffs waited until June 25, 2020, to seek leave to file a 

second amended complaint adding Wells Enterprises as a 

defendant.

Although Plaintiffs argue that they needed to know 

“details of the transaction” to “allege successor liability,” 

and that they “alleged fraud against Wells [Enterprises] for 

its own conduct after the sale of Halo Top” and “could not 

have known the facts underlying that fraud” without 

discovery, “[t]he burden” lies with the plaintiff “to prosecute 

his case properly.” Johnson, 975 F.2d at 610. And even 

assuming this information was necessary to amend the 
14 KAMAL V. EDEN CREAMERY, LLC

complaint, Plaintiffs offer no explanation for why they 

needed eight months to obtain it and move to amend the 

complaint. Accordingly, the district court did not abuse its 

discretion in concluding that Plaintiffs did not act diligently 

and therefore failed to demonstrate good cause to amend the 

complaint and add Wells Enterprises as a defendant after the 

scheduling order’s deadline. See id. at 606–10 (concluding 

that the plaintiff, who moved to join another defendant four 

months after the deadline to amend pleadings, failed to 

demonstrate good cause when the original defendant 

indicated in its answer and response to interrogatories—

before the amendment deadline—that it did not own the ski 

resort at which the plaintiff was injured).

B

Similarly, the district court did not abuse its discretion in 

denying Plaintiffs leave to amend the complaint to 

incorporate their new theory of fraud by omission. Plaintiffs 

assert that the district court did not find that any of the facts 

underlying this theory were known to Plaintiffs “at any time 

before the Motion to Amend.” The district court’s order 

refutes this assertion. The district court recognized that 

Defendants produced the “key documents” that Plaintiffs 

cited as the basis for their new fraud theory on January 31, 

2020, five months before Plaintiffs sought leave to amend 

their complaint. The district court observed that “twelve of 

the sixteen new documents referenced” in the proposed 

second amended complaint were contained in the January 

31, 2020, production, “which comprised 12,224 pages.” 

These documents, which, according to Plaintiffs, “prove[d]” 

their new theory and prompted the filing of their motion, 

included details of a study that allegedly revealed the flaws 

in Halo Top’s ingredients and production methods and 

emails purporting to show that Defendants knew of this 
KAMAL V. EDEN CREAMERY, LLC 15

problem but misled their distributors, retailers, and 

customers about it. In sum, these documents allegedly 

established the core of Plaintiffs’ new fraud theory.

While recognizing that “document review takes time,” 

the district court concluded that Plaintiffs had not met their 

burden to demonstrate good cause because they “failed to 

account for the five months [that elapsed] between the 

production of these key documents” and their motion to 

amend the complaint. Similarly, although Plaintiffs deposed 

Eden Creamery just prior to filing the motion to amend the 

complaint, the court observed that Plaintiffs “fail[ed] to 

articulate what new facts uncovered at the deposition were 

critical to their request.” See Jackson v. Bank of Haw., 902 

F.2d 1385, 1388 (9th Cir. 1990) (rejecting, under Rule 15 

amendment standard, plaintiffs’ argument that “the evidence 

of the [defendant’s] representations, promises, and 

nondisclosures were not ‘fully flushed out’” until later in the 

discovery period given that plaintiffs “cite[d] no facts or 

theories gleaned from the additional discovery period to 

support this contention”).

The district court also noted that it had been “clear from 

the outset” of the case that “‘shrinkage’ would be a key issue 

in one way or another.” In their motion to dismiss the first 

amended complaint—filed November 12, 2018—

Defendants argued that it “would be physically impossible” 

to increase the fill of pints “that are already filled to 

maximum capacity” and that Plaintiffs failed to allege facts 

suggesting Defendants “could avoid potential melting and 

refreezing of the products by third parties.” In other words, 

Defendants asserted that Plaintiffs’ initial “underfilling” 

theory was erroneous because the pints were full at the time 

of manufacturing, but the ice cream would melt and refreeze 

during the distribution process—the very theory Plaintiffs 
16 KAMAL V. EDEN CREAMERY, LLC

sought to allege almost two years later. Additionally, the 

district court recognized that Defendants informed “most of 

[the] named plaintiffs”—before litigation started—that

shrinkage was the reason for apparently less-than-full pints. 

See Acri v. Int’l Ass’n of Machinists & Aerospace Workers, 

781 F.2d 1393, 1398 (9th Cir. 1986) (even under Rule 15’s 

liberal standard, “late amendments to assert new theories are 

not reviewed favorably when the facts and the theory have 

been known to the party seeking amendment since the 

inception of the cause of action”).

Considering the district court’s findings, and in 

particular its determination that Plaintiffs possessed the “key 

documents” forming the basis of their new theory of fraud in 

January 2020 yet “failed to account for the five months” 

between receiving the documents and filing their motion to 

amend in June 2020, the court’s finding that Plaintiffs were 

not diligent was not “illogical, implausible, or without 

support in inferences that may be drawn from the facts in the 

record.” City of Los Angeles v. San Pedro Boat Works, 635 

F.3d 440, 454 (9th Cir. 2011) (quoting United States v. 

Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)). 

Therefore, the district court did not abuse its discretion in 

denying Plaintiffs leave to amend their complaint to 

incorporate this new theory of liability.

3

3 Our conclusion that the district court did not err by finding that 

Plaintiffs were not diligent resolves “the focus of the inquiry” on whether 

the district court abused its discretion by denying leave to file an 

amended complaint and “the inquiry should end” there. Johnson, 975 

F.2d at 609. Therefore, we need not address the district court’s 

alternative finding that allowing Plaintiffs leave to amend would 

prejudice Defendants.
KAMAL V. EDEN CREAMERY, LLC 17

V

Finally, we consider whether the district court abused its 

discretion by denying Plaintiffs’ motion for voluntary 

dismissal without prejudice. Generally, Rule 41(a)(2) grants 

a district court discretion to dismiss a case with or without 

prejudice.4 See Fed. R. Civ. P. 41(a)(2) (“Unless the order 

states otherwise, a dismissal under this paragraph . . . is 

without prejudice.”); Hargis v. Foster, 312 F.3d 404, 407 

(9th Cir. 2002) (“Rule 41 vests the district court with 

discretion to dismiss an action at the plaintiff’s instance 

‘upon such terms and conditions as the court deems proper.’ 

That broad grant of discretion does not contain a preference 

for one kind of dismissal or another.”) (quoting Fed. R. Civ. 

P. 41(a)(2)).

But we have cabined that discretion by repeatedly 

holding that “[w]here the request is to dismiss without 

prejudice, ‘[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.’”5 WPP Lux. Gamma Three Sarl v. Spot Runner, Inc., 

4 Rule 41(a) governs a plaintiff’s ability to voluntarily dismiss an action. 

Under Rule 41(a)(1), a plaintiff has “an absolute right” to voluntarily 

dismiss an action “prior to service by the defendant of an answer or a 

motion for summary judgment.” Wilson v. City of San Jose, 111 F.3d 

688, 692 (9th Cir. 1997). But once the defendant serves an answer or 

motion for summary judgment (and unless the parties stipulate to 

dismissal), a plaintiff “must file a motion for voluntary dismissal under 

Rule 41(a)(2).” Id. Rule 41(a)(2), in turn, permits a plaintiff to 

voluntarily dismiss an action “only by court order, on terms that the court 

considers proper.” Fed. R. Civ. P. 41(a)(2).

5 Our case law is consistent with, and indeed stems from, longstanding 

Supreme Court precedent confirming that, in the absence of prejudice to 
18 KAMAL V. EDEN CREAMERY, LLC

655 F.3d 1039, 1058–59 n.6 (9th Cir. 2011) (second 

alteration in original) (quoting Smith v. Lenches, 263 F.3d 

972, 975 (9th Cir. 2001)), abrogated on other grounds by 

Lorenzo v. SEC, 139 S. Ct. 1094 (2019); Westlands Water 

Dist., 100 F.3d at 96 (“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.”); Stevedoring Servs. of Am. v. 

Armilla Int’l B.V., 889 F.2d 919, 921 (9th Cir. 1989) (“The 

purpose of [Rule 41(a)(2)] is to permit a plaintiff to dismiss 

an action without prejudice so long as the defendant will not 

be prejudiced or unfairly affected by dismissal.” (citation 

omitted)).

the defendant, voluntary dismissal should be without prejudice. See 

Cone v. W. Va. Pulp & Paper Co., 330 U.S. 212, 217 (1947) (stating that 

“[t]raditionally,” the plaintiff had “an unqualified right, upon payment of 

costs, to take a nonsuit in order to file a new action after further 

preparation, unless the defendant would suffer some plain legal prejudice 

other than the mere prospect of a second lawsuit,” and Rule 41 

“preserves” this right); Jones v. SEC, 298 U.S. 1, 19 (1936) (stating it 

was “very clear” that “the right of a complainant to dismiss his bill 

without prejudice, on payment of costs, was of course,” except for when 

“dismissal of the bill would prejudice the defendants in some other way 

than by the mere prospect of being harassed and vexed by future 

litigation of the same kind” (citation omitted)); In re Skinner & Eddy 

Corp., 265 U.S. 86, 93–94 (1924) (explaining that denying a plaintiff 

“the right to dismiss his bill without prejudice at his own costs” was 

reserved for when the defendant was in a position “to seek affirmative 

relief” and “would be prejudiced by being remitted to a separate action”); 

see also Home Owners’ Loan Corp. v. Huffman, 134 F.2d 314, 317 (8th 

Cir. 1943) (explaining that “[R]ule 41 is declaratory of” and “intended 

only to clarify and make definite” the longstanding rule “that a plaintiff 

may dismiss his case without prejudice” upon payment of costs when the 

defendant will not suffer legal prejudice).
KAMAL V. EDEN CREAMERY, LLC 19

“Legal prejudice” is a term of art: it means “prejudice to 

some legal interest, some legal claim, some legal argument.” 

Westlands Water Dist., 100 F.3d at 97. But “[u]ncertainty 

because a dispute remains unresolved is not legal prejudice,” 

id., and “the threat of future litigation which causes 

uncertainty is insufficient to establish plain legal prejudice,” 

id. at 96. Additionally, “the mere inconvenience of 

defending another lawsuit does not constitute plain legal 

prejudice,” Hamilton v. Firestone Tire & Rubber Co., 679 

F.2d 143, 145 (9th Cir. 1982), and “plain legal prejudice 

does not result merely because the defendant will be 

inconvenienced by having to defend in another forum or 

where a plaintiff would gain a tactical advantage by that 

dismissal,” Lenches, 263 F.3d at 976.

A

Relying on these cases, Plaintiffs argue that the district 

court abused its discretion by denying their motion for 

dismissal without prejudice because Defendants failed to 

show that they would suffer legal prejudice as a result. 

Defendants counter that “Plaintiffs err from the outset by 

misstating the test for whether a voluntary dismissal of 

claims may be made with or without prejudice.” Defendants 

argue that Plaintiffs “conflate” the separate determinations 

the court must make when ruling on a motion for voluntary 

dismissal.

In Defendants’ view, the district court first determines 

whether dismissal should be granted at all and considers 

whether the defendant will suffer legal prejudice only at this 

first step of the analysis. If the defendant cannot show legal 

prejudice at the first step, the court must allow dismissal and 

proceed to the second step of the analysis—whether 

dismissal should be with or without prejudice. Defendants 
20 KAMAL V. EDEN CREAMERY, LLC

further argue that at the second step, the district court can 

consider factors other than “legal prejudice,” and therefore 

dismissal may be with prejudice, even if the defendant would 

suffer no legal prejudice from a dismissal without prejudice.

We conclude that Plaintiffs correctly state the standard 

that applies to voluntary dismissal under Rule 41(a)(2), and 

we reject Defendants’ argument that dismissal may be with 

prejudice, even if the defendant would suffer no legal 

prejudice from a dismissal without prejudice, because it is 

directly refuted by our case law. In WPP Luxembourg 

Gamma Three Sarl, we stated that a district court should 

grant a motion for dismissal without prejudice “unless a 

defendant can show that it will suffer some plain legal 

prejudice as a result.” 655 F.3d at 1058–59 n.6 (quoting 

Lenches, 263 F.3d at 975). In Stevedoring Services of 

America, we explained that the purpose of Rule 41(a)(2) is 

“to permit a plaintiff to dismiss an action without prejudice 

so long as the defendant will not be prejudiced or unfairly 

affected by dismissal.” 889 F.2d at 921 (citation omitted). 

And in Westlands Water District, because we concluded that 

the defendants had failed to show they would suffer legal 

prejudice from a dismissal without prejudice, we reversed 

not only the district court’s denial of the plaintiffs’ motion 

for dismissal without prejudice but also its entry of summary 

judgment for defendants, and remanded “with instructions to 

enter an order dismissing the action without prejudice.” 100 

F.3d at 95–96.

Similarly, Defendants misread our decision in Smith v. 

Lenches. Contrary to Defendants’ assertion, that case does 

not support their argument that a court may dismiss a 

plaintiff’s claims with prejudice, even if the defendant would 

suffer no legal prejudice from a dismissal without 
KAMAL V. EDEN CREAMERY, LLC 21

prejudice.

6 That argument was simply not presented in 

Lenches. There, the defendants appealed the dismissal of 

the plaintiffs’ federal securities claims with prejudice, 

arguing that they suffered legal prejudice from dismissal 

because they lost the procedural protections of the Private 

Securities Litigation Reform Act (PSLRA) and because their 

state law counterclaim was dismissed without prejudice. 

263 F.3d at 974–75. The plaintiffs, however, did not appeal 

and we did not consider whether the district court should 

have dismissed their claims without prejudice.

Instead, in rejecting the defendants’ arguments, we 

observed that this was the “rare case” in which the 

defendants “achiev[ed] a complete victory in federal court” 

by securing dismissal with prejudice of all federal claims 

against them, yet “complain[ed] that they were entitled to 

more: the right to proceed with their counterclaim.” Id. at 

974. We explained that the defendants would not suffer 

legal prejudice from the dismissal of the plaintiffs’ federal 

claims, even though they would be required to litigate the 

pending state law claims in state court, and the plaintiffs 

“would gain a tactical advantage.” Id. at 976. We also 

explained that, even though the dismissal of the federal 

securities claims meant that the defendants lost the 

procedural protections of the PSLRA, “[b]ecause those 

6 In Lenches, the plaintiffs moved to voluntarily dismiss their federal 

securities claims to pursue similar state law claims pending in state court. 

263 F.3d at 974–75. The district court dismissed the plaintiffs’ claims 

with prejudice. Id. at 974. Although it is not clear from our opinion in 

Lenches, the briefing from the district court proceedings shows that the 

plaintiffs sought dismissal without prejudice. We grant Defendants’

motion to take judicial notice of the district court briefing in Lenches. 

See Ray v. Lara, 31 F.4th 692, 697 n.4 (9th Cir. 2022) (granting motion 

for judicial notice of court records from other cases).
22 KAMAL V. EDEN CREAMERY, LLC

claims were dismissed and are not continuing, the loss of 

procedural protections relating to them is not legal 

prejudice.” Id. Finally, we noted that because the district 

court dismissed the plaintiffs’ claims with prejudice “so they 

cannot be reasserted in another federal suit,” that “only 

strengthen[ed] our conclusion that the dismissal caused no 

legal prejudice and was not an abuse of discretion.” Id.

But the issue of whether dismissal of the plaintiffs’ 

claims should have been with or without prejudice was not 

before us because the issue was not presented on appeal, see 

id. at 974, and therefore our decision in Lenches does not 

support Defendants’ argument.

Undeterred by these cases, Defendants argue that when 

deciding whether dismissal should be with or without 

prejudice, the district court may consider other factors “not 

rising to the level of legal prejudice,” such as “the 

defendant’s effort and expense involved in preparing for 

trial” and “excessive delay and lack of diligence on the part 

of the plaintiff in prosecuting the action,” and may dismiss 

with prejudice if warranted by these considerations. But we 

have already rejected similar arguments. See Westlands 

Water Dist., 100 F.3d at 97 (“We have explicitly stated that 

the expense incurred in defending against a lawsuit does not 

amount to legal prejudice.”); see also Hamilton, 679 F.2d at 

145–46 (rejecting argument that the plaintiff’s claims should 

have been dismissed with prejudice because defendant “had 

begun trial preparations” and “was put to significant expense 

in preparing and filing its pleadings”).7

7 As our subsequent discussion reflects, a district court may condition a 

dismissal without prejudice on “on terms that the court considers 
KAMAL V. EDEN CREAMERY, LLC 23

In sum, we have never held that the legal prejudice 

inquiry applies only when determining whether voluntary 

dismissal should be allowed at all, with or without prejudice; 

nor have we held that dismissal under Rule 41(a)(2) may be 

with prejudice, even when no legal prejudice would result 

from a dismissal without prejudice. We decline to do so 

now. Instead, as our case law makes clear, the district court 

must determine whether granting a motion for dismissal 

without prejudice would result in legal prejudice to the 

defendant and, if not, the motion should be granted. WPP 

Lux. Gamma Three Sarl, 655 F.3d at 1058–59 n.6; 

Westlands Water Dist., 100 F.3d at 96; Stevedoring Servs. of 

Am., 889 F.2d at 921.

B

Alternatively, Defendants argue that “even if Plaintiffs 

were correct that the district court needed to find [that] some 

‘legal prejudice’” would result from a dismissal without 

prejudice, “such prejudice is present here.” Specifically, 

Defendants argue that a dismissal without prejudice would

cause them prejudice because Plaintiffs acknowledged that 

they intended to refile their claims in a subsequent lawsuit or 

lawsuits. Defendants further argue that the district court 

correctly concluded that dismissing Plaintiffs’ claims 

without prejudice would allow Plaintiffs to circumvent the 

prior denial of leave to file a second amended complaint and

would prejudice Defendants for the same reasons as 

allowing the second amended complaint: litigation would 

continue, preventing resolution of the case.

proper,” Fed. R. Civ. P. 41(a)(2), and in setting such conditions may take 

into account considerations that fall short of legal prejudice. See infra, 

Part V.E.
24 KAMAL V. EDEN CREAMERY, LLC

But legal prejudice does not result when a plaintiff 

“merely gains some tactical advantage” from dismissal, 

Hamilton, 679 F.2d at 145, or when the defendant faces “the 

threat of future litigation which causes uncertainty,” 

Westlands Water Dist., 100 F.3d at 96, or when “the 

defendant will be inconvenienced by having to defend in 

another forum,” Lenches, 263 F.3d at 976. Legal prejudice 

requires something more. In Westlands Water District, we 

surveyed cases from other courts for examples of legal 

prejudice and observed that “courts have examined whether 

a dismissal without prejudice would result in the loss of a 

federal forum, or the right to a jury trial, or a statute-oflimitations defense.” 100 F.3d at 97 (collecting cases).8 We 

8 Although we did not state whether a dismissal without prejudice in 

these circumstances would amount to legal prejudice, the cases we cited 

all concluded that there was no such prejudice. See Westlands Water 

Dist., 100 F.3d at 97 (citing Am. Nat’l Bank & Tr. Co. of Sapulpa v. Bic 

Corp., 931 F.2d 1411, 1412 (10th Cir. 1991) (affirming dismissal 

without prejudice and concluding that the defendant, who removed the 

case to federal court on diversity grounds, did not suffer legal prejudice 

when the plaintiff moved for voluntary dismissal, refiled in state court, 

and named additional defendants to prevent removal); Manshack v. Sw. 

Elec. Power Co., 915 F.2d 172, 173 (5th Cir. 1990) (holding that the 

defendant did not suffer legal prejudice when the plaintiffs moved for 

voluntary dismissal to attempt to circumvent the district court’s ruling 

that Louisiana law applied, which could limit the plaintiffs’ remedies, 

and stating that the defendant “will not be stripped of an absolute 

defense”); Templeton v. Nedlloyd Lines, 901 F.2d 1273, 1276 (5th Cir. 

1990) (per curiam) (affirming district court’s dismissal without prejudice 

and rejecting the defendant’s arguments that it would suffer legal 

prejudice by facing suit in state instead of federal court and by “los[ing] 

some perceived tactical advantage by trying the case to a jury rather than 

to the court”); Davis v. USX Corp., 819 F.2d 1270, 1276 (4th Cir. 1987) 

(holding that “the mere prospect” that the plaintiff would pursue state 

law claims in state court did not amount to legal prejudice)).
KAMAL V. EDEN CREAMERY, LLC 25

also noted a decision from our court affirming the district 

court’s finding of legal prejudice when “the dismissal of a 

party would have rendered the remaining parties unable to 

conduct sufficient discovery to untangle complex fraud 

claims and adequately defend themselves against charges of 

fraud.” Id. (citing Hyde & Drath v. Baker, 24 F.3d 1162, 

1169 (9th Cir. 1994)).

But even if a dismissal without prejudice in these 

circumstances would cause legal prejudice, none of these 

circumstances is present here. Defendants do not contend 

that a dismissal without prejudice would leave them unable 

to secure the discovery necessary to adequately defend 

themselves. See id. They do not assert that they would lose

a statute of limitations defense, or a jury trial, or a federal 

forum.9 Instead, Defendants lose the benefit of a scheduling 

order, which established the deadline to amend the 

pleadings. But the loss of a scheduling order is not 

“prejudice to some legal interest, some legal claim, some 

legal argument.” Id.; see also Durham v. Fla. E. Coast Ry.

Co., 385 F.2d 366, 368 (5th Cir. 1967) (when ruling on a 

motion for voluntary dismissal, “[t]he crucial question to be 

determined is, [w]ould the defendant lose any substantial 

right by the dismissal” (emphasis added)); Manshack, 915 

9 Indeed, at least one court has suggested that even the loss of a statute 

of limitations defense is not enough to show legal prejudice. See 

McCants v. Ford Motor Co., 781 F.2d 855, 857–59 (11th Cir. 1986) 

(defendant did not suffer plain legal prejudice even though it lost statute 

of limitations defense). But see Manshack, 915 F.2d at 174 (discussing 

Phillips v. Ill. Cent. Gulf R.R., 874 F.2d 984 (5th Cir. 1989), in which the 

court concluded that “dismissal without prejudice would have legally 

prejudiced the defendant” when the defendant moved for summary 

judgment arguing the plaintiff’s claims were time-barred, and plaintiff 

moved to dismiss because “the statute of limitations had not expired” in 

other jurisdictions).
26 KAMAL V. EDEN CREAMERY, LLC

F.2d at 174 (noting the “fine line” that “sometimes exists 

between imposing ‘plain legal prejudice’ and merely 

subjecting the defendant to another lawsuit,” and concluding 

that the district court’s ruling on choice of law issue, which 

favored the defendant, “was not as definitive as, say, a 

summary judgment based upon [a state law] defense,” and 

therefore the defendant would not suffer legal prejudice from 

a dismissal without prejudice). Moreover, Defendants do 

not suffer legal prejudice merely because Plaintiffs sought 

leave to amend their complaint before moving for voluntary 

dismissal, rather than moving for dismissal without first 

seeking leave to amend. In either circumstance, the burden 

on Defendants—defending against a new or revised claim—

is the same. And to the extent Defendants incurred expenses 

opposing the motion to amend, the district court can impose

costs and fees as a condition of dismissal.

Two additional cases, in circumstances analogous to 

those presented here, considered whether a dismissal without 

prejudice would result in legal prejudice. First, in Hamilton, 

one of our earliest cases discussing the legal prejudice 

standard, we held that legal prejudice does not result “when 

plaintiff merely gains some tactical advantage” as a result of 

dismissal. 679 F.2d at 145. We cited Durham v. Florida 

East Coast Railway Co., to support that proposition, and that 

case is instructive here. See id. (citing Durham, 385 F.2d at 

368).

Much like this case, Durham involved the district court’s 

denial of the plaintiff’s motion to amend. “When the case 

was called for trial,” the plaintiff, “alleging that he had 

discovered new evidence,” orally moved for leave to amend 

his complaint to add a new cause of action. Id. at 367. The 

district court denied the motion, and the plaintiff then moved 

for voluntary dismissal without prejudice. Id. The 
KAMAL V. EDEN CREAMERY, LLC 27

defendant objected, and the court sustained the objection and 

directed the plaintiff to present his case. Id. After the 

plaintiff “announced that he could not proceed with the 

trial,” the district court dismissed the action with prejudice.

Id.

The Fifth Circuit reversed, concluding “that the district 

court exceeded the bounds of judicial discretion in 

dismissing the complaint with prejudice.” Id. at 369. The

court stated that although the plaintiff’s attorney “may have 

been negligent in failing to discover the new evidence 

sooner,” his negligence “was insufficient to justify dismissal 

of the complaint with prejudice.” Id. at 368. The court 

emphasized the “traditional principle” that “dismissal should 

be allowed unless the defendant will suffer some plain legal 

prejudice other than the mere prospect of a second law suit.

It is no bar to dismissal that plaintiff may obtain some 

tactical advantage thereby.” Id. (quotation omitted).

Because “[t]he record [did] not disclose any prejudice to the 

defendant, had a voluntary dismissal been granted, other 

than the annoyance of a second litigation upon the same 

subject matter,” the court “reverse[d] and remand[ed] with 

instructions that the case be reinstated.” Id. at 369.

In Durham, as here, the plaintiff stood to gain a “tactical 

advantage” by voluntarily dismissing his case: he could 

circumvent the district court’s denial of leave to amend and 

proceed with his case in a new lawsuit. But even if the

plaintiff will gain some edge, that is “no bar to dismissal.” 

Id. at 368; see also Hamilton, 679 F.2d at 145. Although 

dismissal without prejudice means Defendants may have to 

defend against Plaintiffs’ revised fraud theory in another 

case, just as the defendant in Durham had to face the

plaintiff’s new cause of action in a subsequent suit, that does 

not mean Defendants will suffer legal prejudice.
28 KAMAL V. EDEN CREAMERY, LLC

Second, in Pontenberg v. Boston Scientific Corp., the 

Eleventh Circuit affirmed the district court’s dismissal 

without prejudice, even though the plaintiff moved for 

dismissal “after the discovery period had expired and after 

her expert reports had been excluded from the record as a 

result of her attorney’s failure to timely comply with the 

expert disclosure requirements of Rule 26.” 252 F.3d 1253, 

1256 (11th Cir. 2001) (per curiam). The defendant argued 

that dismissal was inappropriate because it “had invested 

considerable resources, financial and otherwise, in 

defending the action,” and the plaintiff had failed to 

diligently prosecute the action. Id.

The court rejected this argument, explaining that

“[n]either the fact that the litigation has proceeded to the 

summary judgment stage nor the fact that the plaintiff’s 

attorney has been negligent in prosecuting the case, alone or 

together, conclusively or per se establishes plain legal 

prejudice requiring the denial of a motion to dismiss.” Id. 

The court further noted that the district court had stated that 

costs should be assessed against the plaintiff if she refiled. 

Id. at 1260. The court concluded that “[w]here the ‘practical 

prejudice’ of expenses incurred in defending the action can 

be ‘alleviated by the imposition of costs or other conditions,’ 

the district court does not abuse its ‘broad equitable 

discretion’ by dismissing the action without prejudice.” Id.

(quoting McCants, 781 F.2d at 859).

Similarly, here, Plaintiffs moved for dismissal after the 

district court rejected their revised fraud claim “as a result of 

[their] attorney’s failure to timely comply with the 

[scheduling order established under] Rule [16],” but that

does not “establish[] plain legal prejudice requiring the 

denial of a motion to dismiss.” See id. at 1256. Ultimately, 

Defendants’ argument amounts to a complaint that they 
KAMAL V. EDEN CREAMERY, LLC 29

should not have to defend against a new theory when 

Plaintiffs were “negligent in prosecuting the case” and 

should have amended their complaint sooner. Id. But just 

as in Pontenberg, any “practical prejudice” resulting from 

Plaintiffs’ belated amendment can be alleviated by curative 

conditions, including an award of costs and attorney’s fees.

C

Defendants also argue, for the first time on appeal, that

if Plaintiffs’ claims were dismissed without prejudice, they 

would suffer legal prejudice “in future litigation” because 

Plaintiffs “defaulted on their shrinkage-based and 

[California Legal Remedies Act] claims . . . through the 

district court’s denial of their motion for leave to amend.” 

Defendants are apparently arguing that a dismissal without 

prejudice would deprive them of a res judicata defense “in 

any future case.” But we have held that “[g]enerally, 

arguments not raised in the district court will not be 

considered for the first time on appeal.” In re Mortg. Elec. 

Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir. 2014). 

And even if we were to exercise our discretion to consider 

this argument, see Exxon Shipping Co. v. Baker, 554 U.S. 

471, 487 (2008), it would still fail.

Defendants’ asserted prejudice from a dismissal without 

prejudice—that they would lose their “legal interest” in 

avoiding Plaintiffs’ claims or, in other words, that they 

would lose a res judicata defense—does not amount to legal 

prejudice. Instead, a dismissal without prejudice under Rule 

41(a)(2) anticipates the loss of a potential res judicata 

defense; that is the nature of a voluntary dismissal without 

prejudice. See Concha v. London, 62 F.3d 1493, 1507 (9th 

Cir. 1995) (voluntary dismissal without prejudice leaves the 

plaintiff “free to seek an adjudication of the same issue at 
30 KAMAL V. EDEN CREAMERY, LLC

another time”). But this is not “prejudice to . . . some legal 

argument.” Westlands Water Dist., 100 F.3d at 97. Instead,

Defendants’ argument that they will be prejudiced by the 

loss of a res judicata defense is merely another form of their

unavailing argument that they will suffer legal prejudice 

because they may have to face future suit on these claims. 

See, e.g., Hamilton, 679 F.2d at 145 (“[T]he mere 

inconvenience of defending another lawsuit does not 

constitute plain legal prejudice.”); 8 Moore’s Federal 

Practice – Civil § 41.40[5][c] (2023) (“One of the central 

purposes of Rule 41(a) is to permit the plaintiff to dismiss an 

action and start over again . . . . Accordingly, it has been 

frequently held that the mere prospect of a second lawsuit 

following a voluntary dismissal without prejudice does not 

constitute plain legal prejudice.”).

D

We also reject Defendants’ argument that the district 

court properly relied on Russ v. Standard Insurance Co., 120 

F.3d 988 (9th Cir. 1997), to deny dismissal without 

prejudice. In Russ, the district court granted the plaintiff’s 

motion for voluntary dismissal without prejudice to allow 

the plaintiff to refile her claims and thus have a second 

opportunity to make a timely demand for a jury trial, and we 

reversed. Id. at 989. Under our case law, the district court 

was prohibited from ordering a jury trial under Federal Rule 

of Civil Procedure 39(b) because the plaintiff’s attorney 

admitted that the reason for the untimely jury demand was 

inadvertence. Id.; see, e.g., Craig v. Atl. Richfield Co., 19 

F.3d 472, 477 (9th Cir. 1994) (stating that although Rule 

39(b) allows the court to order a jury trial on a motion by a 

party who has not filed a timely demand for one, the court 

cannot do so “when the failure to make a timely demand 

results from an oversight or inadvertence” (quotation 
KAMAL V. EDEN CREAMERY, LLC 31

omitted)). We held that the court could not “accomplish 

under Rule 41(a)(2)” what it was “specifically prohibit[ed]” 

from doing under Rule 39(b). Russ, 120 F.3d at 990.

But we have never extended Russ beyond the context of 

Rule 39(b) and jury trial demands, and Defendants offer no 

persuasive reason for us to do so now. While the district 

court there was expressly prohibited from excusing the 

untimely jury demand, there is no equivalent prohibition on 

allowing leave to amend the pleadings. To the contrary, the 

parties agree that the court could have permitted Plaintiffs to 

amend their complaint under Rule 16. Russ is 

distinguishable on this basis. For these reasons, we conclude 

that the district court abused its discretion by denying

Plaintiffs’ motion for voluntary dismissal without prejudice.

E

Finally, we note that Rule 41(a)(2) permits the district 

court to dismiss a case “on terms that the court considers 

proper.” Fed. R. Civ. P. 41(a)(2). Here, Defendants 

requested various conditions if the court granted dismissal 

without prejudice, including an award of partial attorney’s 

fees and costs, but because the district court dismissed 

Plaintiffs’ claims with prejudice, it did not address 

Defendants’ request for conditions.

The district court appeared to believe that, if it granted

dismissal without prejudice, it lacked authority to award 

Defendants some portion of their costs and attorney’s fees. 

But we have repeatedly stated that a district court can award 

costs and attorney’s fees as a condition of dismissal without 

prejudice under Rule 41(a)(2). See, e.g., Stevedoring Servs. 

of Am., 889 F.2d at 921 (noting that costs and attorney’s fees 

are “often” imposed upon a plaintiff granted dismissal under 

Rule 41(a)(2)). Indeed, we have recognized that although 
32 KAMAL V. EDEN CREAMERY, LLC

“the expense incurred in defending against a lawsuit does not 

amount to legal prejudice,” a defendant’s interest “can be 

protected by conditioning the dismissal without prejudice 

upon the payment of appropriate costs and attorney fees.” 

Westlands Water Dist., 100 F.3d at 97. “Imposition of costs 

and fees as a condition for dismissing without prejudice is 

not mandatory,” however, id., and “a defendant is entitled 

only to recover, as a condition of dismissal,” attorney’s fees 

or costs for work that “is not useful in continuing litigation 

between the parties,” Koch v. Hankins, 8 F.3d 650, 652 (9th 

Cir. 1993).

In reaching the opposite conclusion, the district court 

relied, in part, on Heckethorn v. Sunan Corp., 992 F.2d 240 

(9th Cir. 1993). But that case does not support a conclusion 

that fees may not be awarded as a condition of dismissal 

under Rule 41(a)(2).

In Heckethorn, the “issue [was] whether [Rule] 41(a)(2) 

provides an independent base of authority for sanctioning

lawyers.” Id. at 242. We concluded that Rule 41(a)(2) does

not independently authorize a court to require the payment

of attorney’s fees as sanctions against an attorney. Id. at 

242–43. Because the fee award in that case was an attorney 

sanction and Rule 41(a)(2) did not authorize imposition of 

sanctions, we did not need to resolve whether a district court 

can impose attorney’s fees as a condition under Rule 

41(a)(2) when dismissing with prejudice. Id. Nor did the 

case involve the issue of whether Rule 41(a)(2) allows an 

award of fees and costs against a party as a condition of 

dismissal without prejudice. See id.

In sum, the district court had discretion to award 

attorney’s fees as a condition of dismissal without prejudice

under Rule 41(a)(2). Therefore, we remand for the district 
KAMAL V. EDEN CREAMERY, LLC 33

court to consider whether to impose any conditions on the 

dismissal of this action without prejudice, such as an 

appropriate amount of costs and fees.

10

VI

We have jurisdiction to consider the district court’s 

denial of Plaintiffs’ motion for leave to file a second 

amended complaint and conclude that the district court did 

not abuse its discretion by denying that motion. But because 

Defendantsfailed to demonstrate that they would suffer legal 

prejudice if the court dismissed Plaintiffs’ claims without 

prejudice, the district court abused its discretion by denying 

Plaintiffs’ motion to dismiss without prejudice. Therefore, 

we reverse and remand with instructions to dismiss the 

action without prejudice. We also direct the district court to 

consider whether any terms should be imposed as a 

condition of dismissal.

AFFIRMED IN PART, REVERSED IN PART, AND 

REMANDED.11

10 The district court also noted that “even if fees were potentially 

available, [it] would deny Defendants’ request on the basis that 

Defendants have failed to adequately substantiate the reasonableness of 

the amount of their claimed fees, despite being given two opportunities 

to do so.” The district court on remand, in its discretion, may reconsider 

or reaffirm its conclusion that Defendants failed to adequately 

substantiate the reasonableness of their claimed fees.

11 Each party shall bear its own costs on appeal.
34 KAMAL V. EDEN CREAMERY, LLC

R. NELSON, Circuit Judge, concurring in part and 

dissenting in part:

More than seven months after the scheduling-order 

deadline, Plaintiffs sought to amend the First Amended 

Complaint (“FAC”) to add a new defendant and a new theory 

of fraud. I concur in Section IV of the majority opinion 

affirming the district court’s conclusion that Plaintiffs failed 

to satisfy “good cause” to amend under Federal Rule of Civil 

Procedure 16(b)(4). I also concur in Section V.E, holding 

that fees and costs may be awarded as conditions of a Rule 

41 voluntary dismissal.

I dissent from Sections V.A–D because Defendants have 

shown a proper legal interest to warrant dismissal with 

prejudice. Rule 16 creates a legal interest and a legal 

argument that would be lost upon dismissal without 

prejudice. The majority errs in holding that the district court 

abused its discretion when it dismissed the FAC with 

prejudice after Plaintiffs were denied leave to amend their 

complaint. I respectfully dissent. 

I

I begin with the standard of review, abuse of discretion. 

The bar for establishing such abuse is high: “The abuse of 

discretion standard requires that we ‘not reverse a district 

court’s exercise of its discretion unless we have a definite 

and firm conviction that the district court committed a clear 

error of judgment in the conclusion it reached.’” Nat’l 

Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 

798 (9th Cir. 2005) (quoting SEC v. Coldicutt, 258 F.3d 939, 

941 (9th Cir. 2001)).

Applying this deferential review, I would affirm the 

district court in full. As the majority recognizes, when 
KAMAL V. EDEN CREAMERY, LLC 35

deciding a motion to voluntarily dismiss, we require 

dismissal without prejudice unless the defendants would 

suffer legal prejudice, meaning “prejudice to some legal 

interest, some legal claim, [or] some legal argument.” 

Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th 

Cir. 1996). 

Westlands Water District did not say, as the majority 

suggests (Op. 22), that a party’s failing to prosecute a case 

and dilatory tactics in seeking dismissal could never 

constitute legal prejudice. If we established a categorical 

rule that dilatory litigation tactics failed to show prejudice, 

we would have said so. But we did not. Instead, we looked 

to the specific facts of the case. We explained that the 

plaintiffs, who sought voluntary dismissal only a few months 

after “the district court denied their motion for a preliminary 

injunction” and a “month after” efforts to “obtain a 

stipulated dismissal without prejudice” failed, “were not 

dilatory.” Id. 

Unlike this case, the facts in Westland Water District do 

not show dilatory litigation tactics. The complaint there was 

filed on March 9, and the plaintiffs moved to voluntarily 

dismiss on December 23. Id. at 96. The entire case therefore 

lasted only nine months, two months longer than Plaintiffs’ 

delay here in seeking to amend after the scheduling order’s 

deadline. And the FAC here was filed nearly two years 

before Plaintiffs sought to amend the complaint a second 

time. Westlands Water District’s holding does not preclude 

a finding of prejudice based exclusively on delay on these 

facts. And by failing to distinguish the significant 

differences between the litigation history in that case and this 

one, the majority turns Westlands Water District’s factspecific holding on delay into a categorical rule. 
36 KAMAL V. EDEN CREAMERY, LLC

The majority also errs in holding that legal prejudice is 

absent here. And the majority’s holding is far more 

dangerous than it might seem at first blush. Moving forward, 

any district court that finds legal prejudice from a dismissal 

following the denial of leave to amend will abuse its 

discretion. The majority’s broad holding does not follow 

from Westlands Water District’s definition of legal 

prejudice. To the contrary, by not finding legal prejudice 

here, the majority guts Westlands Water District’s 

recognition that the loss of either a legal interest or a legal 

argument is prejudicial. The majority abandons that 

definition by interpreting it so narrowly that it becomes a 

nullity. And there are compelling reasons not to.

The district court’s denial of leave to amend the 

complaint—which we unanimously affirm today—

prevented Plaintiffs from adding new parties or claims. The 

majority wrongly concludes that such a decision will not 

legally prejudice Defendants, who will no longer be able to 

rely on a court’s scheduling order. If the federal rules are to 

continue to impose meaningful limits on litigants, all 

parties—defendants and plaintiffs alike—need to be able to 

rely on their procedural protections.

II

Rule 16(b) imposes a “good cause” standard that protects 

all parties from baselessly departing from scheduling orders. 

This rule, like all federal rules, must be “construed, 

administered, and employed by the court . . . to secure the 

just, speedy, and inexpensive determination of every action 

and proceeding.” Fed. R. Civ. P. 1. Beyond that general 

guiding principle, interpreting the federal rules involves 

“traditional tools of statutory construction.” Republic of 

Ecuador v. Mackay, 742 F.3d 860, 864 (9th Cir. 2014) 
KAMAL V. EDEN CREAMERY, LLC 37

(cleaned up). One such rule requires us to “give[] effect to 

every clause” if possible. Id. And “the cardinal rule of 

statutory interpretation” is “that no provision should be 

construed to be entirely redundant.” Kungys v. United 

States, 485 U.S. 759, 778 (1988). Another “controlling 

principle is that, when reasonably possible, a statute should 

be so interpreted as to harmonize all its requirements by 

giving effect to the whole.” Earle v. Carson, 188 U.S. 42, 

47 (1903).

We have applied such interpretive rules when faced with 

perceived conflicts among the federal rules. In Russ v. 

Standard Insurance Company, for example, we considered a 

plaintiff’s attempt to “achieve a result prohibited” by one 

rule by dismissing a case “pursuant to Rule 41(a)(2).” 120 

F.3d 988, 989 (9th Cir. 1997). We concluded that even the 

“broad discretion granted in Rule 41” could not allow a 

district court to “accomplish indirectly what we have held 

cannot be accomplished directly.” Id. The majority is quick 

to limit Russ to “the context of Rule 39(b) and jury trial 

demands.” Op. 31. It reasons that, because the district court 

below had discretion to permit Plaintiffs to amend their 

complaint, Russ has nothing to say about the circumstances 

here. I disagree. Russ’s reasoning is directly on point if we 

substitute Rule 16 for Rule 39. In Russ, we gave three 

reasons for our decision, and each applies here. 

The Russ court first explained that “allowing the district 

court to accomplish under Rule 41(a)(2) what we 

specifically prohibit it from doing under Rule 39(b) 

introduces an unnecessary conflict between these two 

federal rules.” 120 F.3d at 990. The majority introduces just 

such a conflict here. Under Rule 16, no party can depart 

from a scheduling order without a showing of good cause. 

By limiting Russ to its facts, the majority creates an escape 
38 KAMAL V. EDEN CREAMERY, LLC

hatch from Rule 16’s good-cause standard and from any 

other federal rule other than Rule 39(b). The majority 

effectively eliminates Rule 16 from the federal rules in the 

Rule 41 dismissal context. Following today’s opinion, 

scheduling orders will no longer impose any meaningful 

limitation on the way that plaintiffs—but not defendants—

litigate cases. Meanwhile, interpreting legal prejudice to 

include loss of the benefit from the district court’s ruling on 

the motion to amend would harmonize these rules. I would 

interpret the rules to avoid this conflict. Our cases do not 

require otherwise. 

My conclusion holds even if there is a conflict between 

Rule 16 and Rule 41 that “cannot be reconciled.” Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation 

of Legal Texts 183 (2012) (“Scalia & Garner”). As we

explained in Russ, our cases “ordinarily . . . follow the more 

specific rule over one more general, . . . and our specific 

prohibition on district courts granting jury trials where the 

parties have failed to comply with Rule 38 must trump the 

more general discretionary powers of district courts to 

permit plaintiffs to dismiss under Rule 41(a)(2).” 120 F.3d 

at 990. So too here. Rule 16 requires the scheduling order 

to “limit the time to . . . amend the pleadings . . . and file 

motions,” Fed. R. Civ. P. 16(b)(3)(A), and provides the 

“good cause” standard to excuse a party’s non-compliance, 

Fed. R. Civ. P. 16(b)(4). Because the specific limitations on 

when a party can violate a scheduling order “come[] closer 

to addressing the very problem posed by the case at hand,” 

they are “more deserving of credence” and should govern 

over the general requirements of Rule 41. Scalia & Garner 

at 183.

Finally, we reasoned in Russ that “to allow leave to 

discontinue . . . solely [to cure an untimely demand for a jury 
KAMAL V. EDEN CREAMERY, LLC 39

trial] would work a discrimination . . . in favor of plaintiffs 

whose attorneys had been guilty of inadvertent neglect in 

demanding a jury trial as against defendants similarly 

situated.” 120 F.3d at 990 (cleaned up). “Only plaintiffs can 

request dismissals without prejudice under Rule 41(a)(2) and 

thus only plaintiffs could take advantage of this additional 

avenue to excuse neglect.” Id. The majority rule likewise 

favors plaintiffs who do not amend within the time limits of 

the scheduling order and cannot show good cause for their 

delay at the expense of defendants. I agree with the majority 

(Section V.E) that district courts can impose attorney fees 

and costs as conditions of dismissal without prejudice. But 

that does not cure the legal prejudice to defendants who 

should not have to defend against delayed claims or 

amendments at all, particularly when leave to amend has 

been rejected by the district court. 

In sum, because the three main reasons for rejecting 

voluntary dismissal in Russ apply equally here, we should 

apply them here. The majority takes a different path and 

limits Russ to its facts. But this flouts the rule that 

“reasoning central to a panel’s decision [i]s binding [on] 

later panels.” Garcia v. Holder, 621 F.3d 906, 911 (9th Cir. 

2010) (citation omitted). We are even bound by a prior 

panel’s “[w]ell-reasoned dicta.” Enying Li v. Holder, 738 

F.3d 1160, 1165 n.2 (9th Cir. 2013). For that reason, 

whether or not the reasoning that guided the Russ panel was 

“dicta” or “central” to Russ’s holding, it binds us. The 

majority skirts that binding precedent. This is unwarranted, 

particularly given the risk of abuse from voluntary 

dismissals. Cf. Manshack v. Sw. Elec. Power Co., 915 F.2d 

172, 174 (5th Cir. 1990) (“The courts must carefully monitor 

Rule 41(a)(2) voluntary dismissals to insure that they do not 

engender abuse.”). 
40 KAMAL V. EDEN CREAMERY, LLC

III

Even ignoring Russ’s binding logic here, legal prejudice 

still exists. The majority concludes that the only prejudice 

to Defendants is the prospect of having to defend against a 

second lawsuit. But permitting a subsequent lawsuit 

nullifies the district court’s denial of leave to amend by 

subjecting Defendants to a claim that we unanimously agree 

plaintiffs did not have good cause to add. See Kamal v. Eden 

Creamery, LLC, No. 18-CV-1298 TWR (AGS), 2021 WL 

4460734, at *4 (S.D. Cal. Sept. 29, 2021) (“Plaintiffs are 

clear that the Motion for Voluntarily Dismissal is intended 

to negate the Court’s ruling denying the Motion for Leave to 

Amend. In other words, Plaintiffs seek to avoid the 

consequences of their own lack of diligence and deprive 

Defendants of the benefit of the Court’s Rule 16(b) ruling.”); 

see also Section IV. This does not simply give plaintiffs like 

Kamal “some tactical advantage” from the dismissal, 

Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 

(9th Cir. 1982), or increase defendants’ “uncertainty” from 

“the threat of future litigation,” Westlands Water Dist., 100 

F.3d at 96. Instead, it is a deprivation of the legal interest 

shared by Defendants here—and other defendants moving 

forward—in the procedural protections of Rule 16(b)’s 

good-cause requirement, which protects parties from 

abusive procedural tactics.

The majority wrongly countenances such a result. So 

surely the majority must rely on clear precedent to reach this 

conclusion. Not so. The best the majority can muster is 

outdated, out-of-circuit precedent. To start, Durham v. 

Florida East Coast Railway Company, 385 F.2d 366 (5th 

Cir. 1967), was decided 56 years ago when the federal rules 

did not yet include the current good-cause requirement of 

Rule 16(b). See Advisory Committee’s Notes on Fed. R. 
KAMAL V. EDEN CREAMERY, LLC 41

Civ. P. 16’s 1983 Amendment. There was thus no textual 

conflict between two rules (Rule 41 and Rule 16) like the 

majority creates today.

Then, in Pontenberg v. Boston Scientific Corporation, 

252 F.3d 1253, 1259 (11th Cir. 2001) (per curiam), the 

Eleventh Circuit considered itself bound by Durham.

1

 The 

Eleventh Circuit did not consider how the 1983 addition of 

Rule 16 might impact the prejudice analysis; it simply held 

that “circuit precedent” forbade a finding of legal prejudice 

when faced with “delay alone, in the absence of bad faith.” 

Id. at 1259. 

By contrast, most courts around the country have held 

that excessive delay can legally prejudice a party. See Doe 

v. Urohealth Sys., Inc., 216 F.3d 157, 160 (1st Cir. 2000); 

Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990); 

Gross v. Spies, 133 F.3d 914 (4th Cir. 1998) (unpublished); 

Grover by Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th 

Cir. 1994); Pace v. S. Express Co., 409 F.2d 331, 334 (7th 

Cir. 1969); Paulucci v. City of Duluth, 826 F.2d 780, 783 

(8th Cir. 1987); Ohlander v. Larson, 114 F.3d 1531, 1537 

(10th Cir. 1997). I would join this overwhelming weight of 

authority, particularly where, as here, a contrary conclusion 

creates a conflict between two rules that we should read 

harmoniously.

Nor is delay the only harm facing Defendants. A recent 

decision of the Eleventh Circuit illustrates my point. Dobbs 

v. Allstate Indem. Co., No. 21-13813, 2022 WL 1686910 

(11th Cir. May 26, 2022) (per curiam) (unpublished). There, 

1 See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en 

banc) (all Fifth Circuit decisions decided before September 30, 1981, 

bind the Eleventh Circuit).
42 KAMAL V. EDEN CREAMERY, LLC

like in Pontenberg, the district court excluded the testimony 

of the plaintiff’s expert witness after the plaintiff failed to 

disclose certain aspects of the expert’s opinion as required 

by Rule 26. Id. at *2. The plaintiff replied by moving to 

dismiss under Rule 41(a). Id. at *6. In denying that motion, 

the district court explained that the “true reason for” Dobbs’s 

“wanting to dismiss his case was because he disagreed with 

the district court’s adverse ruling.” Id. The Eleventh Circuit 

agreed, affirming that “voluntary dismissal would not have 

been proper” given the “equities in th[e] case” and the 

district court’s conclusion that the plaintiff’s tactics—

seeking dismissal after an adverse procedural ruling—were 

unfair. Id. Rather than allowing a plaintiff invoking Rule 

41 to overcome the requirements of Rule 26, the Eleventh 

Circuit took a different path—notwithstanding Pontenberg’s 

conclusion that delay alone is not enough to show prejudice. 

The majority dismisses this argument by holding that losing 

a res judicata defense is nothing more than facing a second 

litigation. Op. 29–30. Not so. We have never held that; nor 

does the precedent cited by the majority support that 

conclusion. If Defendants were merely facing a second 

lawsuit, the majority may have a point. But losing a res 

judicata defense must be a legal interest or legal argument if 

Westlands Water District’s definition of legal prejudice has 

any meaning.

We should guarantee that Rule 16(b)’s good-cause 

requirement continues to impose reasonable limitations on 

the ability of plaintiffs and defendants alike to skirt a court’s 

scheduling order. We agreed with the district court that 

Plaintiffs had not shown good cause to amend their 

complaint because of their lack of diligence. The majority’s 

separate reversal of the dismissal with prejudice undermines 

our first holding. It would legally prejudice Defendants to 
KAMAL V. EDEN CREAMERY, LLC 43

allow Plaintiffs to dismiss their suit to avoid the results of 

the district court’s conclusion vis-à-vis amendment. I 

respectfully dissent.