Gladu v. Waltz, 1:18-cv-00275-GZS. (2020)
Court: District Court, D. Maine
Number: infdco20200312b02
Visitors: 13
Filed: Mar. 11, 2020
Latest Update: Mar. 11, 2020
Summary: RECOMMENDED DECISION ON PLAINTIFF'S MOTION FOR VOLUNTARY DISMISSAL OF CERTAIN CLAIMS JOHN C. NIVISON , Magistrate Judge . After Defendants moved for summary judgment (Motion, ECF No. 197), Plaintiff filed a motion to dismiss some of his claims. (Motion, ECF No. 206.) Plaintiff, however, is not entitled to dismiss voluntarily either his entire action or less than all his claims at this stage of the proceedings. See Fed. R. Civ. P. 41(a)(1) (cannot without court order voluntary dismiss acti
Summary: RECOMMENDED DECISION ON PLAINTIFF'S MOTION FOR VOLUNTARY DISMISSAL OF CERTAIN CLAIMS JOHN C. NIVISON , Magistrate Judge . After Defendants moved for summary judgment (Motion, ECF No. 197), Plaintiff filed a motion to dismiss some of his claims. (Motion, ECF No. 206.) Plaintiff, however, is not entitled to dismiss voluntarily either his entire action or less than all his claims at this stage of the proceedings. See Fed. R. Civ. P. 41(a)(1) (cannot without court order voluntary dismiss actio..
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RECOMMENDED DECISION ON PLAINTIFF'S MOTION FOR VOLUNTARY DISMISSAL OF CERTAIN CLAIMS
JOHN C. NIVISON, Magistrate Judge.
After Defendants moved for summary judgment (Motion, ECF No. 197), Plaintiff filed a motion to dismiss some of his claims. (Motion, ECF No. 206.) Plaintiff, however, is not entitled to dismiss voluntarily either his entire action or less than all his claims at this stage of the proceedings. See Fed. R. Civ. P. 41(a)(1) (cannot without court order voluntary dismiss action after answer or motion for summary judgment is filed); Hells Canyon Preservation Council v. U.S. Forest Service, 403 F.3d 683, 687 — 90 (9th Cir. 2005) (plaintiff cannot dismiss even with court approval fewer than all claims under Rule 41(a)(2)).1 Plaintiff's claims are more appropriately addressed in the context of the motion for summary judgment. Accordingly, I recommend the Court deny Plaintiff's motion to dismiss.
FootNotes
1. Plaintiff's request could be considered to be a motion to amend the complaint in accordance with Federal Rule of Civil Procedure 15. Hells Canyon, 403 F.3d at 688-89. A motion to amend that is filed beyond the scheduling order deadline requires an amendment of the scheduling order. To obtain an amendment of the scheduling order, a party must demonstrate "good cause." Johnson v. Spencer Press of Maine, Inc., 211 F.R.D. 27, 30 (D. Me. 2002) (quoting El-Hajj v. Fortis Benefits Ins. Co., 156 F.Supp.2d 27, 34 (D. Me. 2001)); Fed. R. Civ. P. 16(b)(4). A court's decision on good cause "focuses on the diligence (or lack thereof) of the moving party more than it does on any prejudice to the party-opponent." Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004). Plaintiff's motion lacks any basis for his failure to seek an amendment before the close of discovery and the filing of Defendants' motion for summary judgment. To the extent, therefore, that Plaintiff's motion is construed as a motion to amend his complaint, Plaintiff has failed to demonstrate good cause for the amendment at this late stage of the proceedings.
Source: Leagle
