Cohan v. Lombardo

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5} JAMES E. COHAN, Case No. 2:17-cv-01651-JCM-NJK 6 Plaintiff, ORDER V. [Docket Nos. 34, 35] 8] JOSEPH LOMBARDO, et al., 9 Defendants.

10 Pending before the Court is Plaintiff's motion to be allowed to refile a claim. Docket No. Plaintiff previously filed two amended complaints in this action. Docket Nos. 14, 22-1.

12|| Plaintiff's first amended complaint was dismissed with leave to amend. Docket No. 16. The undersigned issued a report and recommendation that Plaintiff's second amended complaint and this case be dismissed. Docket No. 23. The order adopting the report and recommendation noted 15] that Plaintiff did not object to the dismissal without prejudice. Docket No. 30 at 2 (citing Docket 16]| No. 24).

17 Dismissal of a case without prejudice preserves a plaintiff's right to refile his claim. See, 18] e.g., Com. Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (internal citations omitted). However, after a case has been dismissed without prejudice, a plaintiff must 20] file his complaint in a new case and not refile it in the dismissed case. E.g., Frost v. Nat’! Sec. 21|| Agency, 2018 WL 6822632, *2 (N.D. Cal. 2018); Stine v. Wiley, 2010 WL 3516634, *1 (D. Colo. 22} 2010).

23 Accordingly, Plaintiff's motion to refile a clam is DENIED. Docket No. 34. Plaintiffs 24] application to proceed in forma pauperis is DENIED as moot. Docket No. 35. This denial does not affect Plaintiff's ability to file his complaint in a newly initiated case.

26 IT IS SO ORDERED.

27 Dated: October 20, 2022 DO fr SS x.

Nancy J. Koppe 28 United’Statés Magistrate Judge