Office of Administrative Law Judges 525 Vine Street, Suite
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Date: March 15, 2000
Case No.: 1999-STA-0048
In the Matter of:
WILLIAM K. LEPLEY
Complainant
v.
FARMERS UNION ELEVATOR AT NEW SALEM
Respondent
RECOMMENDED ORDER OF DISMISSAL
This case arises under Section 405 of the Surface Transportation
Assistance Act of 1982 , [49 U.S.C. 31105](STAA) and regulations promulgated thereunder [29
C.F.R. Part 1978]. By Order issued on October 22, 1999, the parties were notified that the case
had been assigned for hearing and that a hearing could be scheduled anytime after February 2000.
They were advised to discuss the date for hearing and notify me, no later than November 2, 1999,
of their decision.
In a letter dated October 25, 1999, counsel for the Complainant wrote to
notify me that he was going to be conducting business on the west coast for approximately two
weeks. He advised that he did not believe that the Lepleys were going forward. On October 28,
1999, Complainant's counsel wrote that the Lepleys had decided to go forward with the case.
In a letter dated November 24, 1999, counsel for the Respondent advised
that he was not able to communicate with claimant's counsel before November 2, 1999, so he
responded to my Order and answered my questions, regarding the scheduling of the case. Then
on February 22, 2000, a Motion and Brief for Dismissal was received from the Respondent,
through counsel, stating that Complainant's counsel has advised that the Complainant is not
available and counsel has lost contact with the Complainant. An Affidavit of Mary E. Nordsven
in Support of Motion and Brief for Dismissal was attached.
On February 23, 2000, I issued an Order to the Complainant to show cause
in writing why the Respondent's Motion for Dismissal of the hearing under §1978.105
should not be granted. On February 28, 2000, the Complainant sent his Response to Order to
Show Cause, advising that he had phone contact with the Complainant who requests that this
matter be dismissed.
There is no specific rule or statute governing voluntary dismissal of
complaints under STAA. However, it is provided in 29 C.F.R. § 18.1(a) that the Federal
Rules of Civil Procedure apply in a hearing before an administrative law judge of the U. S.
Department of Labor when there is no specific rule or statute that governs. Fed. R. Civ. P.
41(a)(1) provides for a dismissal by the complainant without the order of the court before the
filing of an answer or motion for summary judgment by the adverse party. Subsection (2) of
Rule 41(a) provides for a dismissal at the plaintiff's instance upon the order of the court or upon
such terms or conditions as the court deems proper.
After carefully considering the request for dismissal sent by the
Respondent on February 16, 2000, and the response from Complainant's counsel advising that the
Complainant wishes this matter be dismissed, I find the agreed request for dismissal to be
voluntary and in the best interest of the parties. Therefore, IT IS HEREBY RECOMMENDED
that the parties' joint motion for dismissal be granted and that the STAA complaint filed by
William K. Lepley be dismissed without prejudice pursuant to Fed. R. Civ. P. 41(a)(2).
