Duncan v. Sacramento Metro Air, 2001-CAA-15 (ALJ Apr. 1, 2002)

U.S. Department of Labor

Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 (415) 744-6569 (FAX)

Issue date: 01Apr2002

CASE NUMBER: 2001-CAA-0015

In the Matter of:

MARK DUNCAN,
    Complainant,

vs.

SACRAMENTO METRO AIR,
    Respondent.

   This case arises under the Clean Air Act, 42 U.S.C. 7622, and regulations pertinent thereto under 29 C.F.R. Part 24. A hearing was scheduled for May 6-10, 2002, in Sacramento, California. The hearing was taken off-calendar on March 29, 2002 after receipt of the Motion which is the subject of this Notice.

   On March 4, 2002, this Court received the complainant's Motion for Dismissal Without Prejudice and Voluntary Withdrawal of Complaint. On March 20, 2002, the Court issued an Order to Show Cause why such Motion should not be granted, to which the respondent replied on March 22, 2002, with no objection to the voluntary dismissal requested by the complainant except that the respondent did object to such dismissal including the words "without prejudice."

   As the Court intends to grant the complainant's motion and dismiss his complaint without prejudice and as the complainant is not represented by counsel, the Court by this Notice informs the complainant regarding the consequences of such dismissal without prejudice as follows:

1. The dismissal of this case "without prejudice" will reinstate the final decision and order of the Department of Labor which dismissed complainant's complaint for lack of merit and the statute of limitations will not be tolled;

2. Therefore, the complainant will not be able to re-file this complaint in this forum, as the 30-day statute of limitations will have run; he may only file a complaint based on the same or similar set of facts in another forum, assuming there is such a cause of action available and the statute of limitations has not run;

3. The complainant states as his reasons for withdrawal of his complaint:

1)The extreme passage of time between my original complaint and the OSHA investigation (I cannot locate most of the witnesses important to my case);
2)The hardship involved in a trial (both physically and mentally) without counsel;
3)The monetary expense required to adequately present my case.

The Court hereby advises the complainant that he might request an extension of time to obtain counsel, rather than withdraw his complaint, or he may represent himself and receive a reasonable extension of time to prepare for the hearing.

   The Court will grant the complainant's Motion for Dismissal Without Prejudice and Voluntary Withdrawal of Complaint if he does not respond in writing to this Notice within 7 days from the date it is issued. The respondent should notify this Court if it no longer objects to the complainant's Motion.

       Anne Beytin Torkington
       Administrative Law Judge