O'FARRELL v. ASTRUE

Filing 7

REPORT AND RECOMMENDATION - Re: 1 Complaint - That Pltf's 6 MOTION to Dismiss Complaint be GRANTED and this case be DISMISSED without prejudice. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on 9/8/2008.Internal deadline for referral to district judge if objections are not filed earlier: 10/6/2008. (laj)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION DIANE S. O'FARRELL, Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _______________________________/ REPORT AND RECOMMENDATION This cause is before the court upon Plaintiff's Motion to Dismiss Complaint (Doc. 6), in which Plaintiff requests that her complaint be dismissed because she "does not want to proceed with h[er] complaint" at this time (id. at 1). Federal Rule of Civil Procedure 41(a)(1) provides that an action may be dismissed without an order of the court (i) by filing a notice of dismissal at any time before the adverse party serves an answer or a motion for summary judgment, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Rule 41(a)(2) provides that "[e]xcept as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order and on terms that the court considers proper." Because Defendant has not yet filed an answer in the instant case, it is clear that Plaintiff is automatically entitled to a voluntary dismissal at this time. Accordingly, it is respectfully RECOMMENDED: That Plaintiff's Motion to Dismiss Complaint (Doc. 6) be GRANTED and this case be DISMISSED without prejudice. Case No.: 5:08cv230/SPM/EMT

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At Pensacola, Florida, this 8th day of September 2008. /s/ Elizabeth M. Timothy ELIZABETH M. TIMOTHY UNITED STATES MAGISTRATE JUDGE NOTICE TO THE PARTIES Objections to these proposed findings and recommendations may be filed within ten (10) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only. A copy of objections shall be served upon the magistrate judge and all other parties. Failure to object may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

Case No.: 5:08cv230/SPM/EMT