Kuhnen v. Remington et al

Filing 9

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the motion for order of dismissal with prejudice (Docket Entry 71) be granted. Signed by Magistrate Judge Joe Brown on 7/26/2017. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
SCOTT KUHNEN,
Plaintiff
v.
DARREN REMINGTON; SUSAN GANN,
Defendants
TO:

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No. 3:17-0730
Judge Trauger/Brown
Jury Demand

THE HONORABLE ALETA A. TRAUGER
REPORT AND RECOMMENDATION
Presently pending is a joint motion by the Plaintiff and

Defendant Gann to dismiss all claims by the Plaintiff against her
(Docket Entry 7).
No opposition to the motion has been filed by the
remaining Defendant Remington. Accordingly, the Magistrate Judge
recommends that the motion be granted and the claims against the
Defendant Gann be dismissed with prejudice in accordance with the
joint motion.
LEGAL DISCUSSION
Under Rule 41(a)(1) a plaintiff may dismiss a case
without a court order before the opposing party serves either an
answer or a motion for summary judgment, or with a stipulation of
dismissal signed by all parties who have appeared. In this case
since the Defendant Gann has appeared and has filed an affidavit
agreeing to the dismissal, it appears that under either section of
Rule 41(a)(1) a dismissal without court order would be appropriate.

Even if a court order is required it appears that there is no
reason not to grant the dismissal with prejudice.
The remaining Defendant Remington was apparently served
on June 7, 2017 (Docket Entry 6). However, he has not filed any
appearance in this matter and may be subject to a motion for
default by the Plaintiff. If the Plaintiff requests a default
against Defendant Remington, he should comply with Rule 55 and
accompany any such motion with an appropriate certificate showing
that

he

has

made

reasonable

efforts

to

ascertain

that

this

Defendant is not in the armed services. Generally,

a request to

https://scra.dmdc.osd.mil/single_record_xhtml

provide

will

the

necessary information about current military service.
RECOMMENDATION
For

the

reason

stated

above,

the

Magistrate

Judge

recommends that the motion for order of dismissal with prejudice
(Docket Entry 71) be granted.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

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 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further

2

appeal of this Recommendation. 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).
ENTER this 26th day of July, 2017.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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