his Notice of Voluntary Dismissal
via fascimile transmission at 1:12 p.m. on Monday, November 2,
1992. Earlier that day, at 7:32 a.m., the Respondent filed its
[Page 2]
answer to the Complainant's complaint.
The Notice was submitted pursuant to the Federal Rules of
Civil Procedure 41(a)(1)(i) and the order of the Secretary of
Labor which govern the procedure for voluntary dismissal of a
claim brought under Section 210 of the Energy Reorganization Act,
42 U.S.C. §5851. see e.g. Mosbaugh v. Georgia Power Company,
90-ERA-58 (Sec. Dec. September 23, 1992).
Fed. R. Civ. P. 41(a)(1) provides that a plaintiff has the
right to a voluntary dismissal of an action without order of
court by way of filing a notice of dismissal prior to an adverse
party's filing of an answer or a motion for summary judgment.
The Complainant contends that at the time of its
submission, no answer or motion for summary judgment had been
filed. However, the Respondent's answer was received in this
Office the morning of November 2, 1992, and, therefore, filed
prior to the Notice that afternoon. Thus, the Complainant is not
entitled to a dismissal without prejudice in the absence of a
court order.
Voluntary dismissal without prejudice may be granted under
Fed. R. Civ. P 41(a)(2) by order of court if the complainant has
not had an action based on the same set of facts previously
dismissed in another United States or state court.
Accordingly, it is hereby ORDERED that:
The Complainant:
1) affirm to this Court that an action based on the facts
of this case has not been previously dismissed in any other
United States or State court; and
2) set forth the reason(s) and supporting facts as to why
he requests a voluntary dismissal at this time, and why this
court should order this matter be voluntarily dismissed without
prejudice.
The Respondent:
1) show cause why this matter should not be voluntarily
dismissed without prejudice. Specifically, Respondent should set
[Page 3]
forth reason(s) and supporting facts to show in what way it will
be substantially prejudiced by the entry of dismissal without
prejudice; and
2) show cause whether this matter should be dismissed with
prejudice: and
3) provide the reason why it submitted its answer more than
forty-five days (45) days after the complaint was filed with this
office.
The parties are given ten(10) days from the date of this
order in which to comply. All other matters or issues will be
held in abeyance until this order is complied with
AARON SILVERMAN
Administrative Law Judge
[ENDNOTES]
1 A document is deemed filed upon
receipt by the Chief Clerk
of the Office of Administrative Law Judges. 29 C.F.R.
§ 518.5(c)(5).
