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Boykins v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

July 13, 2015

JACQUELINE BOYKINS, o/b/o B.B., a minor, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S MOTION TO WITHDRAW COMPLAINT [4]

DAVID R. GRAND, Magistrate Judge.

I. REPORT

A. Background

Plaintiff Jacqueline Boykins, through her counsel, commenced this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of the Social Security Administration denying her claim for benefits on behalf of minor B.B. [1]. A review of the docket confirms plaintiff's acknowledgment that she has not effectuated service of the summons and complaint pursuant to Fed.R.Civ.P. 4(i).[1] Plaintiff now moves to voluntarily withdraw her complaint pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i). [4].

B. Analysis

Fed. R. Civ. P. 41(a) governs voluntary dismissals in federal court. Fed.R.Civ.P. 41(a)(1)(A) permits a plaintiff to voluntarily dismiss an action, without prejudice, without a court order: (1) by filing an appropriate notice, if the adverse party has not filed an answer or a motion for summary judgment; or (2) by stipulation of the parties. In this case, the first condition is satisfied because plaintiff did not effectuate service of the summons and complaint under Fed.R.Civ.P. 4(i), and thus, the Commissioner was never made aware of this action in the first place. Since plaintiff could simply have filed a notice of dismissal indicating her intent to voluntarily dismiss her claim for benefits without prejudice, the Court sees no reason to deny plaintiff's "motion" to effectuate such a dismissal.

II. RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that plaintiff's motion to voluntarily withdraw her complaint [4] be GRANTED and the complaint [1] be DISMISSED WITHOUT PREJUDICE.

NOTICE TO THE PARTIES REGARDING OBJECTIONS

The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). The filing of objections which raise some issues, but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. A party may respond to another party's objections within 14 days after being served with a copy. See Fed.R.Civ.P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be concise, and should address specifically, and in the same order raised, each issue presented in the objections.


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