Petrozzi v. State of Washington et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATION by Judge Benjamin H. Settle re 25 Report and Recommendations. (TG; cc mailed to plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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TIMOTHY R. PETROZZI,
Plaintiff,

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v.

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ORDER ADOPTING REPORT
AND RECOMMENDATION

STATE OF WASHINGTON, et al.,

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CASE NO. C18-5502 BHS

Defendants.

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This matter comes before the Court on the Report and Recommendation (“R&R”)

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of the Honorable David W. Christel, United States Magistrate Judge (Dkt. 25), Defendant

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Chris Van Veckten’s (“Veckten”) response (Dkt. 26), and Plaintiff Timothy Petrozzi’s

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(“Petrozzi”) clarification (Dkt. 30).

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On August 23, 2018, Petrozzi filed a motion to withdraw his complaint and stay

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any and all procedures. Dkt. 22. Petrozzi also asserted that he would be responsible for

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fees that were incurred as part of this matter. Id. On August 29, 2018, Judge Christel

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issued an R&R recommending that the Court convert Petrozzi’s motion to a motion to

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voluntarily withdraw his complaint and grant the motion. Dkt. 25. On August 29, 2018,

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Veckten responded to Petrozzi’s motion requesting that the Court dismiss the complaint

ORDER - 1

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with prejudice and award fees under Fed. R. Civ. P. 41(d). Dkt. 26. On September 20,

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2018, Petrozzi filed a declaration clarifying his earlier statement that he takes

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responsibility only for the filing fees he incurred by requesting that the Court allow him

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to proceed in forma pauperis. Dkt. 30.

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The district judge must determine de novo any part of the magistrate judge’s

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disposition that has been properly objected to. The district judge may accept, reject, or

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

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In this case, the Court agrees with Judge Christel that Petrozzi’s motion should be

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considered as a motion to voluntarily dismiss his complaint and be granted. A plaintiff

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may voluntarily dismiss his complaint at any time before the opposing party serves an

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answer. Fed. R. Civ. P. 41 (a)(1)(A)(i). Veckten has not served an answer. Thus,

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Petrozzi may voluntarily withdraw his complaint without any consequences, such as an

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award of fees. Veckten is correct that he may seek an award of fees if Petrozzi refiles his

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complaint. Fed. R. Civ. P. 41(d). This rule, however, does not provide authority to

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reward fees in anticipation of a second action. Moreover, the Court accepts Petrozzi’s

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clarification that he accepts responsibility only for the filing fees. Therefore, the Court

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having considered the R&R, the parties’ responses, and the remaining record, does

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hereby find and order as follows:

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(1)

The R&R is ADOPTED;

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(2)

Petrozzi’s motion to voluntarily dismiss (Dkt. 22) is GRANTED; and

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ORDER - 2

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(3)

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The Clerk shall strike Vecken’s pending objections (Dkt. 11) and close this
case.

Dated this 26th day of September, 2018.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3