Jones v. Commissioner of Social Security

Filing 16

ORDER granting 14 Motion to Dismiss. Signed by District Judge Debra M. Brown on 6/28/16. (jtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
TERESA JONES

PLAINTIFF

V.

NO. 3:15-CV-00049-DMB-DAS

COMMISSIONER OF SOCIAL
SECURITY

DEFENDANT

ORDER OF DISMISSAL
Teresa Jones has moved to dismiss this social security appeal based on her attorney’s
determination that Jones has “no basis to overcome [the] substantial evidence standard.” Doc.
#14. The Commissioner of Social Security has informed the Court that it has no opposition to
dismissal. Doc. #15.
Where, as here, a request for dismissal in a social security appeal does not seek dismissal
pursuant to a specific rule, courts will treat the motion as brought under Rule 41 of the Federal
Rules of Civil Procedure. See King v. Comm'r of Soc. Sec., No. CIV.A. 07-178-C, 2008 WL
4298566, at *1 (M.D. La. Sept. 16, 2008) (“The court will therefore consider the claimant’s letter
to be a notice of dismissal under Rule 41(a)(1)(A)(I) of the Federal Rules of Civil Procedure.”);
Nandan v. Apfel, No. 00 CV 6630, 2001 WL 477233, at *1 (E.D.N.Y. Feb. 26, 2001)
(“[P]laintiff informed the court that he no longer wished to pursue his claim …. The court will
construe this request as a motion for voluntary dismissal pursuant to Rule 41(a)(1) of the Federal
Rules of Civil Procedure.”). Pursuant to this rule, the Court interprets Jones’ motion as a motion
to dismiss pursuant to Rule 41(a)(2), which grants a court authority to dismiss an action “at the
plaintiff’s request.” Where, as here, “a party seeking to voluntarily dismiss a claim pursuant to
Rule 41(a)(2) is silent as to whether the dismissal should be with or without prejudice, the

district judge is required to interpret the motion one way or the other.” Rucker ex rel. Rucker v.
Indianola Health and Rehab. Ctr., No. 4:05-cv-78, 2006 WL 3307505, at *2 (N.D. Miss Nov.
13, 2016) (quoting GF Gaming Corp. v. City of Black Hawk, Colo., 405 F.3d 876, 888 (10th Cir.
2005)).
When interpreting a motion to dismiss, “the court should keep in mind the interests of the
defendant, for it is his position which should be protected. Nevertheless, in most cases a
dismissal [without prejudice] should be granted unless the defendant will suffer some legal
harm.”

LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976) (internal citation

omitted). Legal harm, is defined as “plain legal prejudice other than the mere prospect of a
second lawsuit.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 318 (5th Cir. 2002). The Fifth
Circuit has identified four factors a court should consider in determining the existence of plain
legal prejudice: “(1) the defendant’s effort and the expense involved in preparing for trial; (2)
excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action; (3)
insufficient explanation of the need to take a dismissal; and (4) the fact that a motion for
summary judgment has been filed by the defendant.” Fuhgetaboutit, LLC v. Columbus Police
Dep’t, No. 1:10-CV-207, 2011 WL 4529665, at *3 (N.D. Miss. Sept. 28, 2011).
Here, the relevant factors are somewhat mixed. The record reflects little effort on
Defendant’s part in preparing for trial, no excessive delay and no lack of diligence on the part of
Plaintiff, and no motion for summary judgment filed by Defendant. However, the reason for
dismissal, which in essence concedes the lack of sufficient evidence to prevail on appeal,
counsels against a dismissal with prejudice. While it is a close call, the Court, out of an
abundance of caution, will deem the motion as seeking a dismissal without prejudice.

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Accordingly, Jones’ unopposed motion to dismiss [14] is GRANTED and this action is
DISMISSED without prejudice.
SO ORDERED, this 28th day of June, 2016.

/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

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