                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 14 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-56409

              Plaintiff - Appellee,              D.C. No. 2:09-cv-05672-SVW-
                                                 PJW
  v.

KIYOKO ITO; et al.,                              MEMORANDUM *

              Claimants - Appellants.,

_____________________,

ONE 2008 TOYOTA RAV 4 SPORTS
UTILITY VEHICLE,

              Defendant.



                    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




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


       **
             The Honorable Kimberly J. Mueller, District Judge for the U.S.
District Court for Eastern California, sitting by designation.

                                           2
      We VACATE the district court’s dismissal without prejudice and

REMAND with instructions to dismiss with prejudice.




                                       3
