Filed: Mar. 06, 2014
Latest Update: Mar. 06, 2014
Summary: RECOMMENDED DECISION ON MOTION TO DISMISS JOHN C. NIVISON, Magistrate Judge. This matter is before the Court on Defendant Courtney Evans's motion to dismiss (ECF No. 19). Plaintiff has not filed an objection to the motion. Given that the 21-day deadline for filing objections to the motion has passed, Plaintiff has waived objection to the motion. Local Rule 7(b). Plaintiff Jim Lee III, an inmate at a state facility, filed this action, pursuant to 42 U.S.C. 1983, in which action Plaintiff ass
Summary: RECOMMENDED DECISION ON MOTION TO DISMISS JOHN C. NIVISON, Magistrate Judge. This matter is before the Court on Defendant Courtney Evans's motion to dismiss (ECF No. 19). Plaintiff has not filed an objection to the motion. Given that the 21-day deadline for filing objections to the motion has passed, Plaintiff has waived objection to the motion. Local Rule 7(b). Plaintiff Jim Lee III, an inmate at a state facility, filed this action, pursuant to 42 U.S.C. 1983, in which action Plaintiff asse..
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RECOMMENDED DECISION ON MOTION TO DISMISS
JOHN C. NIVISON, Magistrate Judge.
This matter is before the Court on Defendant Courtney Evans's motion to dismiss (ECF No. 19). Plaintiff has not filed an objection to the motion. Given that the 21-day deadline for filing objections to the motion has passed, Plaintiff has waived objection to the motion. Local Rule 7(b).
Plaintiff Jim Lee III, an inmate at a state facility, filed this action, pursuant to 42 U.S.C. § 1983, in which action Plaintiff asserted claims against Courtney Evans and others. (ECF No.1, 1-1.) Plaintiff appears to seek damages for incidents that occurred while he was in custody at the Penobscot County Jail. Plaintiff's subsequent motion to amend the complaint has been granted. (Motion to Amend and Proposed Amended Complaint, ECF No. 21, 21-1, 21-2; Order Granting Motion to Amend, ECF No. 23.)
In the amended complaint, Plaintiff does not assert a claim against Courtney Evans.1 Indeed, in the amended complaint, Plaintiff does not name Evans as a defendant in either the caption of the complaint or in Part III of the complaint form. With the grant of the motion to amend complaint, therefore, Courtney Evans is effectively no longer a party to the action.
Fed. R. Civ. P. 21 states in pertinent part: "On motion or on its own, the court may at any time, on just terms, add or drop a party." See Ziegler v. Akin, 261 F.2d 88, 91 (10th Cir. 1958) (noting that "[t]he remedy available to improper parties is a motion to be dropped from the case"); Waconda v. United States, No. CIV 06-0101 JB/ACT, 2006 WL 4109670, at *3, 2006 U.S. Dist. Lexis 95649, at *7 (D. N.M. Aug. 28, 2006) ("Improper parties may move the court to be dropped from a law suit pursuant to [Fed. R. Civ. P. 21]."); Miller & Kane, 6 Federal Practice and Procedure § 1479 (3d ed. 1998). Because in the amended complaint Plaintiff did not assert a claim against Courtney Evans, it is more appropriate to drop Courtney Evans as a party in accordance with Fed. R. Civ. P. 21, than to dismiss a claim or claims against her. In other words, after the grant of the motion to amend complaint, no claims against Courtney Evans remain for the Court to dismiss.
Based on the foregoing analysis, therefore, the recommendation is that the Court, on its own motion pursuant to Fed. R. Civ. P. 21, drop Courtney Evans as a party to this action. The further recommendation is that the Court dismiss as moot, Defendant Evans's motion to dismiss.
