Wade v. Kerner

• Court: District Court, District of Columbia
• Decided: March 15, 2022
• Docket: Civil Action No. 2021-2396
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

E.K. WADE,

Plaintiff,

v. Case No. 21-cv-2396 (GMH)

HENRY J. KERNER,

Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Henry J. Kerner’s motion to dismiss the complaint filed by

Plaintiff E.K. Wade (ECF No. 25) and Plaintiff’s “Motion To Dismiss Complaint for Damages

Without Prejudice” (ECF No. 26). The Court will grant Plaintiff’s motion and, as a result, denies

Defendant’s motion as moot.

This case generally revolves around Plaintiff’s allegation that Defendant and the United

States Office of Special Counsel (“OSC”) failed to adequately investigate whistleblower claims

that Plaintiff filed concerning his treatment as an employee in a Department of Labor field office

in California. His original complaint, filed on September 6, 2021, was 133 pages long and

challenging to decipher. ECF No. 1. Liberally construed, the original complaint brought

negligence, negligent infliction of emotional distress, and lost wages claims against Defendant, the

head of the OSC, for the OSC’s failure to investigate his whistleblower complaints against, among

other persons and entities, numerous Department of Labor officials. Id. Plaintiff also appeared to

assert First and Fifth Amendment Bivens claims against Defendant. Id. Plaintiff then attempted

to amend his complaint several times. See ECF Nos. 5, 7, 14, 15, 18. The Court held a hearing

on December 23, 2021, to address which of Plaintiff’s numerous complaints would be deemed the operative pleading document. See Minute Entry (Dec. 23, 2021). The parties agreed that Plaintiff

would be permitted to file one more complaint—a sixth amended complaint—to which the

Defendant would respond. Id. Consistent with that agreement, Plaintiff filed a Sixth Amended

Complaint on December 30, 2021. ECF No. 23. The document stretches some 160 pages and,

again, is difficult to interpret, but appears to contain First and Fifth Amendment Bivens claims and

seeks damages. Id.

Defendant subsequently moved to dismiss the Sixth Amended Complaint for lack of

subject matter jurisdiction, improper venue, and failure to state a claim upon which relief could be

granted. ECF No. 25. Plaintiff then moved to voluntarily dismiss his claims without prejudice.

ECF No. 26. The Court will construe Plaintiff’s motion as a motion to voluntarily dismiss pursuant

to Fed. R. Civ. P. 41(a)(1)(A)(i). As explained, the Court grants Plaintiff’s motion and therefore

denies Defendant’s motion as moot.

Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure allows a plaintiff to voluntarily

dismiss an action without a court order “by filing a notice of dismissal before the opposing party

serves either an answer or a motion for summary judgment.” See Fed. R. Civ. P. 41(a)(1)(A)(i).

Rule 41(a)(1) provides a “simple, self-executing mechanism,” whereby “the plaintiff files a notice

of dismissal[;] . . . the dismissal takes effect automatically[; and] the trial judge has no role to play

at all.” Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir. 1987). “The dismissal is without

prejudice, unless the notice states otherwise.” Norris v. D.C. Gov’t, No. CIV.A 05-1122, 2008

WL 7994986, at *5 (D.D.C. Aug. 1, 2008), report and recommendation adopted sub nom. Norris

v. Univ. of D.C. 05-01122, 2008 WL 7994985 (D.D.C. Sept. 12, 2008).

2 Here, Defendant has not filed an answer to Plaintiff's complaint or a motion for summary

judgment. So, the action must be dismissed. 1 See, e.g., Annapolis Citizens Class Overcharged for

Water-Sewer, by Loudon Operations, LLC v. Stantec, Inc., No. CV 20-2603, 2021 WL 75766, at

*4 (D.D.C. Jan. 8, 2021) (“Plaintiff has filed a notice of voluntary dismissal without prejudice.

This action must be dismissed without prejudice because defendants have not yet answered

plaintiff's complaint or filed a motion for summary judgment.”); Miniter v. Sun Myung Moon, 736

F. Supp. 2d 41, 45 n.7 (D.D.C. 2010) (“In the present case, none of the defendants the plaintiff

purports to dismiss has filed an answer or motion for summary judgment. Therefore, the plaintiff

properly dismissed his claims against these defendants pursuant to Rule 41(a)(1)(A)(i).”); Little v.

Trott & Trott, P.C., No. CIV.A. 09-1882, 2009 WL 4827441, at *1 (D.D.C. Dec. 14, 2009)

(dismissing case where plaintiff filed motion to dismiss and “none of the [d]efendants have filed

either an answer or a motion for summary judgment”).

The fact that Defendant has filed a motion to dismiss Plaintiff’s complaint under Fed. R.

Civ. P. 12(b)(6) does not change the calculus. “[C]ourts have found that the filing of a motion to

dismiss for failure to state a claim does not affect a plaintiff’s right to voluntarily dismiss his case.”

West v. Am. Fresh Foods, L.P., No. 7:10-91, 2011 WL 63563, at *1 (M.D. Ga. Jan. 4, 2011); see

also Aamot v. Kassel, 1 F.3d 441, 444 (6th Cir. 1993) (affirming district court dismissal of action

when the plaintiff filed her dismissal after the defendant filed a Rule 12(b)(6) motion to dismiss);

Kilpatrick v. Texas & P.R. Co., 166 F.2d 788, 792 (2d Cir. 1948) (explaining that filing a motion

to dismiss for lack of personal jurisdiction before the plaintiff filed notice of dismissal did not

preclude the plaintiff from voluntarily dismissing the case); Brown v. T–Ink, LLC., 2007 WL

1 Because Plaintiff has styled his submission as a “motion,” the Court enters this Memorandum Opinion and Order granting it although that is technically unnecessary because, as noted, the dismissal is “self-executing.” Randall, 820 F.2d at 1320.

3 4098207, at * 3 (E.D. Mich. Nov. 16, 2007) (“It is well-established that a plaintiff’s right to a

voluntary dismissal is not extinguished by the filing of a motion to dismiss under Fed. R. Civ. P.

12(b), subject to the exception for Rule 12(b)(6) motions converted to motions for summary

judgment.” (citation and quotations omitted)); Seippel v. Jenkens & Gilchrist, P.C., 2004 WL

2809205, at * 1 (S.D.N.Y. Dec. 7, 2004) (“The filing of a motion to dismiss pursuant to Rule

12(b)(6) does not ordinarily affect the plaintiff’s right to a Rule 41(a)(1) dismissal.”).

Further, given Plaintiff’s dismissal of his own complaint, Defendant’s bid to dismiss the

same is now moot. See, e.g., Bush v. Semyenova, 255 F. Supp. 3d 235, 238 (D.D.C. 2017) (finding

that grant of motion to dismiss under Fed. R. Civ. P 41 (a)(1)(A)(i) mooted defendant’s motion to

dismiss); Little, 2009 WL 4827441, at *1 (same).

Thus, it is hereby

ORDERED that Plaintiff’s “Motion To Dismiss Complaint for Damages Without

Prejudice” (ECF No. 26) is GRANTED. It is further

ORDERED that Defendant’s motion to dismiss the Sixth Amended Complaint (ECF No.

25) is DENIED as MOOT.

The Clerk shall close this case.

SO ORDERED.

G. Michael Digitally signed by G. Michael Harvey

Date: March 15, 2022 Harvey Date: 2022.03.15 ____________________________ 13:09:32 -04'00' G. Michael Harvey United States Magistrate Judge