Opinion
CV-18-3552-PHX-JFM
11-27-2018
Eugenia Wright, Plaintiff v. Commission of Social Security Administration, Defendant.
Report and Recommendation
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 RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). Dated: November 27, 2018
/s/_________
James F. Metcalf
United States Magistrate Judge 18-3552-011o Order 18 11 21 on Motion to Withdraw Complaint.docx