Lewis v. Miller et al

Filing 13

REPORT AND RECOMMENDATION: The undersigned, therefore, recommends that the instant Motion 12 be construed as a Motion made pursuant to Fed. R. Civ. P. 41(a)(2), that that Motion be granted, and that Plaintiff's claims against Defendants Jere my Grimes, Meridian, and Foresight Health Services Holdings, be dismissed without prejudice. Signed by Magistrate Judge E. Clifton Knowles on 5/28/14. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

PHYLLIS LEWIS,
Plaintiff,

vs.

PAUL MILLER, Administrator,
JEREMY GRIMES, COO,
MERIDIAN, FORESIGHT HEALTH
SERVICES HOLDINGS, dba
GREENHILLS SENIOR HEALTH
CENTER,
Defendants.

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CASE NO. 3:14-0897
JUDGE TRAUGER/KNOWLES

REPORT AND RECOMMENDATION
This matter is before the Court upon the pro se Plaintiff’s “Motion to Dismiss
Defendants.” Docket No. 12. The body of the Motion states in full as follows:
Plaintiff moves this court to dismiss complaint against and/or
remove Meridian Foresight and Jeremy Grimes form [sic]
complaint for the following reason:
At the time complaint was filed with the EEOC,
Meridian Foresignt [sic] was no longer the owner of
GREEN HILLS Senior Health Center.
All shares were sold to Paul Miller.
Id.
Plaintiff previously filed a discrimination charge with the EEOC against some or all of
the Defendants. Plaintiff, as the charging party, subsequently executed a “Negotiated Settlement
Agreement” that was also signed by an EEOC representative, and a person or entity identified as

“Respondent.”1 Docket No. 1-1, p. 2. The Settlement Agreement required Respondent to make
a number of payments to Ms. Lewis, totaling $12,000.00. Ms. Lewis filed the instant lawsuit on
April 2, 2014, alleging that Respondent had breached the Settlement Agreement by not paying
the appropriate amounts due. Docket No. 1.
Judge Trauger has referred the case to the undersigned “for case management, decision
on all pre-trial nondispositive motions and Report and Recommendation on all dispositive
Motions under 28 U.S.C. § 636(b)(1) and to conduct any necessary proceedings under Rule 72,
Fed. R. Civ. P.” Docket No. 8.
On May 20, 2014, the undersigned entered an Order directing the Clerk to send blank
Summons forms to Plaintiff. Docket No. 10. The Order provided that Plaintiff was to complete
the Summonses and return them to the Clerk’s Office within twenty (20) days of the receipt of
the Order. The Order further provided, “The Clerk’s Office will issue the Summons forms and
return them to the plaintiff for service of process.” Id. Plaintiff has not yet returned the
completed Summons forms (which are not yet due), and, therefore, none of the Defendants has
been served. The instant Motion to Dismiss was filed May 21, 2014.
Fed. R. Civ. P. 41(a) governs voluntary dismissals of actions. Rule 41(a)(1)(A) provides
that a 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; or
(ii) a stipulation of dismissal signed by all parties who have
appeared.
Plaintiff has filed neither a Notice of Dismissal nor a Stipulation of Dismissal.

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The signature for “Respondent” on the Settlement Agreement is illegible.
2

Therefore, the instant Motion should be analyzed under Rule 41(a)(2), which provides in
relevant part:
Except as provided in Rule 41(a)(1), an action may be dismissed at
the plaintiff’s request only by court order on terms that the court
considers proper. . . . .
It is reasonably clear from the instant Motion that Plaintiff wishes to dismiss this action
against Defendants Jeremy Grimes, Meridian, and Foresight Health Services Holdings.
The undersigned, therefore, recommends that the instant Motion be construed as a
Motion made pursuant to Fed. R. Civ. P. 41(a)(2), that that Motion be granted, and that
Plaintiff’s claims against Defendants Jeremy Grimes, Meridian, and Foresight Health Services
Holdings, be dismissed without prejudice.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

E. Clifton Knowles
United States Magistrate Judge

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