United States District Court, D. Arizona
REPORT AND RECOMMENDATION
JAMES
F. METCALF JUDGE
Under
consideration is Plaintiff's Motion to Withdraw
Complaint, filed November 21, 2018 (Doc. 11). Plaintiff moves
to withdraw her complaint, citing Federal Rule of Civil
Procedure 6(b)(1), and reporting defense counsel has no
objection.
Magistrate
Judge Authority - Because Plaintiff seeks a
dispositive ruling (i.e. termination of this
action), and the matter is currently assigned to Magistrate
Judge Metcalf awaiting a consent to magistrate jurisdiction
from Defendant, the matter is addressed via a Report and
Recommendation to District Judge McNamee. See Williams v.
King, 875 F.3d 500, 504-505 (9th Cir. 2017) (holding
that the absence of consent from unserved defendants deprived
the magistrate judge of jurisdiction to dismiss the
complaint). But see Local Rule of Civil Procedure
3.7(b) (purporting to permit magistrate judge to act pursuant
to 28 U.S.C. § 636(c)(1) pending refusal of consent).
Applicable
Law - Plaintiff's Complaint is pursuant to
42 U.S.C. § 405(g), which authorizes review of
Defendant's decisions “by a civil action.”
Those actions are subject to the Federal Rules of Civil
Procedure. Califano v. Yamasaki, 442 U.S. 682, 700
(1979).
Rule
6(b)(1) relates to an extension of time. There is no time
limit referenced by Plaintiff and none appears to restrict
the relief she requests, i.e. dismissal.
Rather,
the withdrawal of a complaint is governed by Federal Rule of
Civil Procedure 41(a), which speaks in terms of a
“voluntary dismissal.” Rule 41(a)(1)(A) provides
that “the plaintiff may dismiss an action without a
court order by filing…a notice of dismissal before the
opposing party serves either an answer or a motion for
summary judgment.”
The
fact that Plaintiff has filed this as a “motion”
does not preclude its operative effect as a notice of
dismissal. “Although the document filed by [plaintiff]
was denominated a Motion for Voluntary Dismissal rather than
a notice of dismissal as specified in Rule 41(a)(1), the
Court finds this distinction to be without legal significance
since the effect desired by [plaintiff] in filing the
document with the Court was clearly to have his claims
dismissed without prejudice.” Roddy v. Dendy,
141 F.R.D. 261, 261 (S.D.Miss. 1992). “It is merely a
notice and not a motion, although a notice in the form of a
motion is sufficient.” 9 Fed. Prac. & Proc.
Civ. § 2363, Voluntary Dismissal- Dismissal as a
Matter of Right (3d ed.). Accordingly, Plaintiff's filing
may operate as a notice of dismissal.
The
Rule provides: “Unless the notice or stipulation states
otherwise, the dismissal is without prejudice. But if the
plaintiff previously dismissed any federal- or state-court
action based on or including the same claim, a notice of
dismissal operates as an adjudication on the merits.”
Fed.R.Civ.P. 41(a)(1)(B).
Conclusion
- Accordingly, the Court should construe Plaintiff's
filing as a notice of dismissal without prejudice pursuant to
Federal Rule of Civil Procedure 41(a)(1)(i).
“As
the rule states, no action by the court is required for
dismissal by notice under Rule 41(a)(1)(i). A voluntary
dismissal by a plaintiff under this subsection automatically
terminates the action upon the filing of the dismissal with
the clerk.” Hamilton v. Shearson-Lehman Am. Exp.,
Inc., 813 F.2d 1532, 1534-35 (9th Cir. 1987).
IT
IS THEREFORE RECOMMENDED that Plaintiff's Motion
to Withdraw Complaint, filed November 21, 2018 (Doc. 11) be
CONSTRUED as a notice of dismissal without
prejudice, pursuant to Federal Rule of Civil Procedure
41(a)(1).
IT
IS FURTHER RECOMMENDED that the Complaint and this
case be DISMISSED WITHOUT PREJUDICE
IT
IS FURTHER RECOMMENDED that the Clerk of the Court
be ordered to terminate this action.
EFFECT
OF ...