Date Issued: APR 13 1992

Case No. 92-ERA-28

In the Matter of

LINDA E. MITCHELL
    Complainant

    versus

ARIZONA PUBLIC SERVICE COMPANY

   and

ARIZONA NUCLEAR POWER PROJECT
    Respondents

    On April 3, 1992, counsel for Complainant filed a Notice of Voluntary Dismissal of Count I of the complaint. Count I includes paragraphs 18 through 28 inclusive of the original complaint. On April 9, 1992, counsel for Respondents filed a statement indicating that they had no objection to the voluntary dismissal of Count I.

   On October 25, 1991, Linda Mitchell mailed her complaint to the Administrator, Wage and Hour Division, Washington, D.C. for filing. 29 C.F.R. Section 23.3(d). Neither the regulations promulgated for the handling of discrimination complaints under the Energy Reorganization Act nor the Rules of Practice and Procedure of this office require the filing of an answer by the Respondents to that complaint. 29 C.F.R. Section 24.1 et seq. and 29 C.F.R. Section 18.5. Therefore, the formal record contains no responsive statement to Count I of Linda Mitchell's complaint in this case.

   Complainant relies upon the authority of Fed. R. Civ. P. 41(a)(1)(i). She also refers to several final orders of the Secretary in which the Secretary has approved recommended orders of dismissal under circumstances where cases have been dismissed without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(i). Cable v. Arizona Public Service Co., 91-ERA-29, 5 OALJ 3, p. 154. However, the Complainant's authority in that regard is misplaced.

   Fed. R. Civ. P. 41(a)(1)(i) provides for the dismissal of an action by the Plaintiff without order of Court by way of the filing of a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment. As noted above, no answer has been filed in this proceeding nor have the Respondents filed a motion for summary judgment. Therefore, it would appear as though the voluntary dismissal provisions would apply. However, the Complainant seeks the voluntary dismissal of fewer then all of the claims made in her original complaint. Therefore, a question arises as to whether the provisions of 41(a)(1) apply. There exists a split in authority on this question. Some have concluded that this rule does not apply under these circumstances and that the Complainant's motion to dismiss a single claim of a multi-count complaint should properly be treated as an amendment to the complaint under Fed. R. Civ. P. 15.

   The purpose of Rule 41(a) permitting a voluntary dismissal of the action is to give the Complainant the right to remove the case from Court if no other party will be prejudiced. WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURE, Ch. 7, § 2362, at 149. As best I can determine under the circumstances of this case, no prejudice would result to the Respondents by permitting Complainant to withdraw the Claim evidenced by Count I of her complaint. The Respondents apparently also can see no prejudice resulting from that action. However, the technical problem involved here was clearly identified in the recent case of Gronholz v. Sears, Roebuck & Co., 836 F.2d 515 (Fed. Cir. 1987). That decision contains the following comment:

As the court explained in Smith, Kline & French Laboratories v. A. H. Robbins Co., 61 F.R.D. 24, 28-29, 181 USPQ 12, 14-15 (E.D. Pa. 1973).

The initial issue before us is whether Rule 41 is applicable to the present case. Both Rules 41(a)(1) and 41(a)(2) apply by their terms to dismissal of an "action." The reference to an "action" in Rule 41(a) contrasts with Rule 41(b), which provides that "a defendant may move for dismissal of an action or of any claim against him." (Emphasis supplied). The language of Rule 41(b) is broader and more comprehensive than the parallel language In Rule 41(a). While the notes of the advisory committee do not discuss the question, it is reasonable to assume that the drafters of Rule 41 would have included similar language in Rule 41(a), had they intended to have that rule cover dismissal by the plaintiff of less than all the claims against any defendant.

. . .

The Federal Rules and the cases which construe them thus make a clear distinction between a "claim" and an "action." Therefore, when Rule 41(a) refers to dismissal of an "action," there is no reason to suppose that the term is intended to include the separate claims which make up an action. When dismissal of a claim is intended, as in Rule 41(b), that concept is spelled out in plain language. (Citation omitted.)

See also Management Investors v. United Mine Workers, 610 F.2d 384, 394-95 (6th Cir. 1979); Exxon Corp. v. Maryland Casualty Co., 599 F.2d 659, 662 (5th Cir. 1979); C. Van Der Lely N.V. v. F.lli Maschio S.n.c., 561 F.Supp. 16, 19-20, 217 USPQ 1258, 1259-60 (S.D. Ohio 1982); 5 Moore's, 41.06-1, at 41-82 to -84.

I recognize that earlier authority have taken a different view. Oswalt v. Scripto, Inc., 616 F.2d 191 (5th Cir. 1980).

   Following consideration of this question, I agree with the Federal Circuit and its decision in Gronholz. Fed. R. Civ. P. 15(a) provides that a party may amend her pleadings once as a matter of course at any time before a responsive pleading is served. I conclude therefore, that the Complainant's Notice of Voluntary Dismissal of a single count of a two count complaint should be properly treated as an amendment of the pleadings under Fed. R. Civ. P. 15(a). The Complainant's notice, therefore, is received as such. Thus, Count I of the complaint is stricken in its entirety and Count II shall now be referred to as Count I.

   For our purposes here, I believe that this approach is preferable since I can find no precedent either in the Ninth Circuit or in the Secretary's decisions involving § 210 matters. Additionally, I find this approach to be more technically accurate under the Federal Rules.

      RUDOLF L. JANSEN
      Administrative Law Judge