McDonald v. Miller et al

Filing 26

REPORT AND RECOMMENDATION re 25 Notice to the Court filed by Bryan Keith McDonald. The Court recommends granting of Plf's oral request for dismissal without prejudice in light of the parties' oral agreement. Objections to R&R due by 3/10/2009. The referral is terminated. Signed by Magistrate Judge Robert Bacharach on 2/18/09. (lb)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA BRYAN KEITH McDONALD, Plaintiff, v. DAVID MILLER, et al., ) ) ) ) ) ) ) )

Case No. CIV-08-830-M

Report and Recommendation The Plaintiff filed a memorandum, asking the Court to stop the pleadings and stating that he declined to proceed further in this case. The Court conducted a telephone conference with Mr. McDonald and counsel of record for the Defendants, Ms. Margie Weaver, on February 17, 2009.1 The purpose of the conference was to clarify the Plaintiff's intent. In the conference, Mr. McDonald stated during the telephone conference that he wished to dismiss the action without prejudice to refiling. In light of the existence of a motion for summary judgment, the Court asked defense counsel whether she objected.2 She said she did not and agreed that all parties should pay their own costs and attorney fees. In light of the agreement of the parties, the Court should grant the Plaintiff's oral request for dismissal without prejudice.3

1

A court reporter was present for the telephone conference and took a record of the discussion.
2 3

See Fed. R. Civ. P. 41(a)(2). See Fed. R. Civ. P. 41(a)(2).

The parties can object to the present report and recommendation. Any such objection must be filed with the Clerk of this Court by March 10, 2009.4 The failure to timely object would foreclose appellate review of the suggested ruling.5 The referral is terminated. Entered this 18th day of February, 2009.

4 5

See W.D. Okla. Local Civil Rule 72.1.

See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived."). 2