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Issue Date: 06 August 2003
Case No. 2003-TSC-2 and 2003-TSC-3
In the Matters of
DENISE SCHLOEMER
DAWN STANLEY
Complainants
v.
HUNTINGTON ORCHARDS, INC.
Respondent
BEFORE: RUDOLF L. JANSEN
Administration Law Judge
RECOMMENDED ORDER OF DISMISSAL
This case arises under the employee protection provisions of Section 23 of the Toxic Substances Control Act, 15 U.S.C. Section 2622, and Section 11(c) of the Occupational Safety and Health Act, and the applicable procedural regulations found at 29 C.F.R Part 24. The matter was initiated as the result of hearing requests made by the Complainants following adverse rulings by the U.S. Department of Labor after investigation of their complaints. By Order dated March 18, 2003, the cases were consolidated for all purposes including hearing.
After proper notice, the consolidated matter was called for hearing on July 8, 2003 in Ft. Wayne, Indiana. At that time, Denise Schloemer appeared on her own behalf, but neither Dawn Stanley nor any representative on her behalf entered an appearance. Richard DeLaney appeared on behalf of Respondent and moved for dismissal of Ms. Stanley's complaint. His motion in that regard remains pending.
Shortly after July 8, 2003, the Complainants apparently retained Lori W. Jansen to represent them in this matter. On July 22, 2003, there was received from Ms. Jansen a Complainants' Motion for Dismissal pursuant to Federal Rule of Civil Procedure (FRCP) 41(a). The motion is signed both by Denise Schloemer and Dawn Stanley. The motion requests that the matter be dismissed with prejudice and notes that the request is not based upon any settlement. It also states that costs are to be borne by the parties. Richard DeLaney filed a response to the dismissal motion and requests that any dismissal order state that the matter is being dismissed with prejudice and notes that the Complainants secured attorney advice in advance of the Motion filing. Since the Motion to Dismiss requests dismissal with prejudice and was submitted by an attorney on behalf of the Complainants, I interpret Mr. DeLaney's comments as voicing no objection to the granting of the motion.
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Neither the Toxic Substances Control Act nor its implementing regulations make provision for the voluntary dismissal of a complaint. Therefore, where a Complainant in a case arising under the Act seeks a voluntary dismissal, FRCP 41(a) is applied. Everhart v. Tecumseh Products Co., Case No. 91-TSC-4, Sec. Final Ord. of Dismissal, Aug. 30, 1991; Caccavale v. Northeast Utilities, Case No. 91-ERA-3, Sec. Final Order of Dismissal, Dec. 18, 1990, slip op. at 1-2; Nolder v. Raymond Kaiser Engineers, Inc., Case No. 84-ERA-5, Sec. Order, June 28, 1985, slip op. at 6-7. The Complainants' Motion for Dismissal, which was signed by both Complainants and submitted by counsel, requests dismissal of both of the complaints with prejudice and notes that the dismissal is not the result of any settlement. The Respondent's written concurrence in effect constitutes a stipulation of dismissal by the parties satisfying the requirements of FRCP 41(a)(1)(ii). Buck v. Tennessee Valley Authority, Case No. 91-ERA-10, Sec. Final Order of Dismissal, Dec. 23, 1991, slip op. at 1-2; Denayer v. Tennessee Valley Authority, Case No. 91-ERA-32, Sec. Final Order of Dismissal, July 22, 1991, slip op. at 1-2; Nunn v. Duke Power Co., Case No. 84-ERA-27, Sec. Order, Sept. 29, 1989, slip op. at 3-4. I do not find the provisions of Federal Rules of Civil Procedure 23(e) or 66 to be applicable to the Complainants' dismissal request.
I conclude that the Complainants' Motion for Dismissal, based upon authority conferred by FRCP 41(a)(1)(ii), combined with the responsive statement received from Respondent's counsel, and the inapplicability of Federal Rules 23(e) and 66, complies in all respects with the rule requirements.
Based upon the request of Complainants, IT IS RECOMMENDED that the Motion for Dismissal filed by the Complainants be granted. As noted above, the request for dismissal involves no settlement agreement between the parties.
In view of the granting of the Complainants' dismissal request, the Respondent's pending Motion to Dismiss the complaint of Ms. Stanley has been rendered moot. For that reason, the Motion is hereby denied.
RUDOLF L. JANSEN
Administrative Law Judge
NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.7(d) and 24.8.
