KYRICOS v. MARY'S GONE CRACKERS

Filing 23

ORDER granting 22 Motion to Withdraw Complaint; granting without prejudice 8 Motion to Dismiss for Lack of Jurisdiction; Affirming Report and Recommended Decision re 17 Report and Recommended Decision re 8 Motion to Dismiss/Lack of Jurisdiction filed by MARY'S GONE CRACKERS; dismissing as moot 20 Motion to Withdraw Claim from Federal Court; dismissing 20 Motion to Remand to State Court. By JUDGE JOHN A. WOODCOCK, JR. (jlg)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ARTHUR KYRICOS
Plaintiff
v.
MARY’S GONE CRACKERS
Defendant

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No. 1:15-cv-00224-JAW

ORDER DISMISSING COMPLAINT
On June 11, 2015, Arthur Kyricos filed a complaint in this Court, claiming that
he had broken a tooth while eating one of Mary’s Gone Crackers’ (MGC) crackers.
Compl. (ECF No. 1). On July 13, 2015, MGC moved to dismiss the Complaint due to
lack of subject matter jurisdiction. Mot. to Dismiss Compl. (ECF No. 8). On July 29,
2015, Mr. Kyricos moved to amend his Complaint. Pl.’s Mot. for Leave to File Am.
Compl. (ECF No. 11).

On September 29, 2015, the Magistrate Judge issued a

recommended decision, granting the motion to amend the complaint but
recommending that the Amended Complaint be dismissed without prejudice.
Recommended Decision on Def.’s Mot. to Dismiss and Order on Pl.’s Mot. to Am. (ECF
No. 17).
On October 15, 2015, Mr. Kyricos filed a motion to withdraw his federal claim
and to obtain an order remanding the case to state court. Pl.’s Mot. to Withdraw
Claim from Federal Ct. and Remove it to State Ct. (ECF No. 20). On October 16, 2015,
MGC objected to the state court remand on the ground that the district court is

empowered to remand a case to state court only if the case was initiated in state court
and removed to federal court. Def.’s Opp’n to Pl.’s Mot. to Remove to State Ct. (ECF
No. 21). On October 28, 2015, Mr. Kyricos moved to withdraw the Complaint and
represented that he intended to “seek judicial remedy at the State Court.” Pl.’s Mot.
to Withdraw Compl. (ECF No. 22).
The simplest course of action is to grant Mr. Kyricos’ request to dismiss his
pending federal court complaint without prejudice to allow him to proceed, if he
chooses to do so, in state court and to affirm the Recommended Decision because Mr.
Kyricos’ motion to dismiss requests the same relief the Magistrate Judge
recommended in his recommended decision. The remaining motion to withdraw and
remand is dismissed as moot.
The Court GRANTS Plaintiff’s Motion to Withdraw Complaint (ECF No. 22)
and DISMISSES his Complaint (ECF No. 1) without prejudice. The Court also
AFFIRMS the Recommended Decision (ECF No. 17) and GRANTS the Mary’s Gone
Crackers’ Motion to Dismiss without prejudice (ECF No. 8). The Court DISMISSES
as moot the Plaintiff’s Motion to Withdraw Claim from Federal Court and Remove it
to State Court (ECF No. 20).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 25th day of November, 2015

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