Duncan v. Sacramento Metro Air, 2001-CAA-15 (ALJ Apr. 17, 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: 17Apr2002

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 Order.

   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 complainant is not represented by counsel, the Court by Notice issued on April 1, 2002, informed 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.

   In the same Notice issued April 1, 2002, the Court notified the complainant that; it would grant his Motion for Dismissal Without Prejudice if he did not respond in writing within 7 days from the date of issue. The respondent was advised to notify the Court if it no longer objected to the complainant's Motion. The complainant made no response within the time allotted. The respondent filed a Notice of Non-Opposition to Claimant's Motion to Dismiss Complaint on April 5, 2002.

   Neither the statute, the applicable regulations at 29 C.F.R. Part 24, nor this Office's Rules of Practice and Procedure at 29 C.F.R. Part 18, contain a provision dealing with the ability of a complaining party to voluntarily dismiss its complaint. Accordingly, it is appropriate to look to the Federal Rules of Civil Procedure for guidance (see 29 C.F.R. §18.1(a)). Rule 41(a) of the Federal Rules deals with voluntary dismissal of claims. Under Rule 41(a)(1), an action may be dismissed by the plaintiff without an order of court only if it is filed prior to the adverse party's service of an answer or motion for summary judgment, or if all parties file a stipulation of dismissal. The respondent has filed both an answer and a motion for summary judgment; therefore, the first portion of Rule 41(a)(1) does not apply. While the respondent initially objected to the complainant's Motion, it has withdrawn its objection. However, the parties did not file a joint stipulated dismissal. Therefore, it appears that Rule 41(a)(2), voluntary dismissal by order of the Court, is more apt. That section specifies that

an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. . . . Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

   Therefore, based upon the complainant's Motion, his non-response to this Court's Notice to him regarding the consequences of a dismissal of his claim without prejudice, and the respondent's withdrawal of its objection to a dismissal without prejudice, it is recommended that the complainant's complaint be dismissed without prejudice, and that the final decision and order of the Department of Labor which dismissed complainant's complaint for lack of merit be reinstated.

       Anne Beytin Torkington
       Administrative Law Judge