Cribbs #715114 et al v. Case et al
Filing
33
OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION 29 ; Defendant City of Battle Creek Police Department's motion to dismiss 13 is GRANTED as to Plaintiff Tate and DISMISSED AS MOOT as to Plaintiff Cribbs; Defendant Case's Motion to Dismiss 16 is GRANTED as to Plaintiff Tate and DISMISSED AS MOOT as to Plaintiff Cribbs; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
COREY CRIBBS II, et al.,
Plaintiffs,
Case No. 1:11-cv-713
v
HON. JANET T. NEFF
JOEL CASE, et al.,
Defendants.
_______________________________/
OPINION AND ORDER
Plaintiffs Corey Cribbs II and his mother, Kameaka Tate, initiated the present civil action in
July 2011, alleging civil rights violations arising from the events surrounding Cribbs’ arrest in 2008.
On February 17, 2012, the two defendants remaining in this case, Defendant Joel Case and
Defendant City of Battle Creek Police Department, filed motions to dismiss (Dkts 13, 16).1 On April
30, 2012, Plaintiff Cribbs filed a Notice of Voluntary Dismissal (Dkt 27). On May 15, 2012, the
Magistrate Judge filed a Report and Recommendation (R&R), recommending that this Court grant
Defendant City of Battle Creek Police Department’s Motion to Dismiss, and further recommending
that this Court grant in part and deny in part Defendant Case’s Motion to Dismiss (Dkt 30). Only
Plaintiff Tate filed objections to the Report and Recommendation (Dkt 30).
1
Plaintiffs’ claims against Defendants Stephen Bush, Chief of Battle Creek Police
Department Unknown Party #1, Calhoun County Prosecutor Unknown Party #2, and Steven E. Parks
were previously dismissed with prejudice for Plaintiffs’ failure to state a claim upon which relief
could be granted (12/6/2011 Order, Dkt 10).
I. Plaintiff Cribbs’ Notice of Voluntary Dismissal
In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3), the Court is required
to perform de novo consideration of those portions of the Report and Recommendation to which
objections have been made. However, the threshold issue presented by the current posture of this
case is the effect of Plaintiff Cribbs’ April 30, 2012 Notice of Voluntary Dismissal, which the
Magistrate Judge did not address in the May 15, 2012 Report and Recommendation. The Notice
of Voluntary Dismissal is in the form of Plaintiff Cribbs’ handwritten letter to the Court, seeking a
“voluntary dismissal without prejudice of the above-entitled caption case” (Dkt 27). Defendants did
not file any response to the Notice.
Voluntary dismissals by a plaintiff are governed by Federal Rule of Civil Procedure
41(a)(1)(A), which provides in pertinent part that “the plaintiff may dismiss an action without a court
order by filing (i) a notice of dismissal before the opposing party serves either an answer or a motion
for summary judgment.” “Unless the notice or stipulation states otherwise, the dismissal is without
prejudice.” FED. R. CIV. P. 41(a)(1)(B). No court order is required, and the notice is effective as of
the date filed. Warfield v. AlliedSignal TBS Holdings, Inc., 267 F.3d 538, 541 (6th Cir. 2001) (“[The
plaintiff’s] unilateral notice was the legally operative act of dismissal pursuant to Rule 41(a)(1)(i),
making the district court’s subsequent order to the same effect superfluous.”); Aamot v. Kassel, 1
F.3d 441, 445 (6th Cir. 1993) (“[A] Rule 41(a)(1) notice of dismissal is self-effectuating, leaving no
basis upon which a District Court can prevent such a dismissal.”).
In Aamot, 1 F.3d at 444, the Sixth Circuit Court of Appeals unequivocally rejected the
position that a pending motion to dismiss bars voluntary dismissal. The Sixth Circuit opined that
the “[Rule 41(a)] language unambiguously requires a defendant, in order to make plaintiff put his
2
money where his mouth is, to serve plaintiff with a summary judgment motion or an answer.” See
also Rouse v Caruso, No. 06-10961, 2007 WL 909600, at *3 (E.D. Mich. Mar. 23, 2007) (observing
that “the courts that have considered the issue are virtually unanimous in holding that ‘[a] plaintiff’s
right of voluntary dismissal under Rule 41(a)(1) is not terminated by the filing of a Rule 12 motion
to dismiss by the defendant’”); 9 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE & PROCEDURE § 2363 (3d ed. 2012) (“it [is] clear that a motion to dismiss under Rule 12
does not terminate the right of dismissal by notice”).
The Sixth Circuit relied on the same reasoning again in 2000, in Eddins v Summers, 230 F.3d
1358 (6th Cir. 2000) (Table), where the appellate panel amended the district court’s order of
“dismissal with prejudice” to reflect that the dismissal under Rule 41(a)(1) was instead “without
prejudice.” Id. at *1 (opining that “the district court has no discretion to deny such a dismissal”).
See also Potts v. Klein, No. 4:07CV697, 2007 WL 4248190, at *3 (N.D. Ohio Nov. 30, 2007)
(applying Aamot and Eddins to dismiss the plaintiff’s action without prejudice and the pending
motions to dismiss as moot).
Therefore, although the Magistrate Judge did not address the Notice of Voluntary Dismissal,
its effect was self-executing and rendered superfluous the merits-based analysis of Cribbs’ claims
against Defendants Joel Case and City of Battle Creek Police Department. Consequently, the Court
rejects those portions of the Magistrate Judge’s report analyzing the sufficiency of his claims against
Defendants as well as the recommendations on the motions. Rather, pursuant to the Notice of
Voluntary Dismissal, this Court will dismiss Plaintiff Cribbs’ then pending claims without prejudice
and dismiss as moot the motions to dismiss.
II. Plaintiff Tate’s Objections
3
As to Plaintiff Kameaka Tate, the Magistrate Judge determined (1) that the complaint
contains no allegations of wrongful conduct by Defendants Joel Case and City of Battle Creek Police
Department against Plaintiff Tate, and (2) that Plaintiff Tate lacks standing to pursue Cribbs’ claims;
therefore, the Magistrate Judge recommended that Plaintiff Tate’s claims be dismissed for failure
to state a claim on which relief may be granted (R&R, Dkt 29 at 5). In her objections, Plaintiff Tate
does not challenge either of these determinations by the Magistrate Judge. Plaintiff Tate’s purported
“objections” to the Report and Recommendation consist of her argument that “she has standing to
sue to vindicate her own personal injury,” injury that she opines includes “[e]motional distress,
nervousness, [and] fear for her son’s life” as well as “loss of parental consortium” (Objs., Dkt 30 at
2-3).
The injuries Plaintiff Tate mentions were not alleged in the complaint (Dkt 1), nor did
Plaintiff Tate raise these injuries or present her standing argument in her response to the motions to
dismiss (Dkt 24). Accordingly, her argument is waived, and her objections are denied. It is well
established that parties may not raise at the district court stage new arguments or issues that were not
presented to the magistrate judge. Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000)
(citing United States v. Waters, 158 F.3d 933, 936 (6th Cir. 1998), and Marshall v. Chater, 75 F.3d
1421, 1426-27 (10th Cir. 1996) (“issues raised for the first time in objections to magistrate judge’s
report and recommendation are deemed waived”)). See also Peoples v. Hoover, 377 F. App’x 461,
463, 2010 WL 1923629, at *2 (6th Cir. May 13, 2010) (observing that the Sixth Circuit “regularly”
enforces the preservation requirement against pro se litigants); see, e.g., Tapp v. Hedespeth, No. 896423, 1990 WL 118702, at *1 (6th Cir. Aug. 15, 1990) (Table) (affirming the district court’s
decision refusing to consider the pro se plaintiff’s new claims, which were asserted for the first time
4
in the plaintiff’s objections to the magistrate judge’s report and recommendation). The Court
approves and adopts the Report and Recommendation to grant the motions to dismiss as to Plaintiff
Tate.
III. Conclusion
The Court rejects the Report and Recommendation as to Plaintiff Cribbs because the effect
of Plaintiff Cribbs’ Notice of Voluntary Dismissal was to voluntarily dismiss without prejudice his
then-pending claims against Defendants Joel Case and City of Battle Creek Police Department. The
Court denies Plaintiff Tate’s objections to the Report and Recommendation and approves and adopts
the Report and Recommendation as the Opinion of the Court as to Plaintiff Tate. Defendants Joel
Case and City of Battle Creek Police Department are entitled to dismissal with prejudice of Plaintiff
Tate’s claims against them. Because this Opinion and Order resolves the last pending claim in this
case, the Court will also enter a Judgment. See FED. R. CIV. P. 58. Accordingly:
IT IS HEREBY ORDERED that the Objections (Dkt 30) are DENIED, and the Report and
Recommendation (Dkt 29) is APPROVED IN PART and REJECTED IN PART, as noted.
IT IS FURTHER ORDERED that Defendant City of Battle Creek Police Department’s
Motion to Dismiss (Dkt 13) is GRANTED as to Plaintiff Tate and DISMISSED AS MOOT as to
Plaintiff Cribbs.
IT IS FURTHER ORDERED that Defendant Case’s Motion to Dismiss (Dkt 16) is
GRANTED as to Plaintiff Tate and DISMISSED AS MOOT as to Plaintiff Cribbs.
24
Date: September ___, 2012
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?