United States of America v. Kiyoko Ito;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIYOKO ITO; et al.,
Claimants - Appellants.,
_____________________,
ONE 2008 TOYOTA RAV 4 SPORTS
UTILITY VEHICLE,
Defendant.
No. 10-56409
D.C. No. 2:09-cv-05672-SVW-
PJW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted May 7, 2012
Pasadena, California
FILED
MAY 14 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable Kimberly J. Mueller, District Judge for the U.S.**
District Court for Eastern California, sitting by designation.
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Before: NOONAN and FISHER, Circuit Judges, and MUELLER, District Judge.**
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
because 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.

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

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