United States District Court, E.D. Michigan, Southern Division
Judge
Victoria A. Roberts
ORDER GRANTING PLAINTIFF'S MOTION TO DROP
UNSERVED DEFENDANT (JAMES ROTH) (DE 95)
ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE.
This
matter came before the Court for consideration of
Plaintiff's May 15, 2019 motion to drop unserved
Defendant (James Roth). (DE 95.) Plaintiff seeks an order to
dismiss Defendant James Roth from this action so that it may
proceed to trial. (Id.) This motion is unopposed and
all remaining defendants have been served and appeared in
this matter.
I.
Background
On
September 5, 2018, this Court issued an order granting
Plaintiff's unopposed motion to amend the complaint,
treating DE 58 at Page ID 1047-1058 as Plaintiff's
Amended Complaint, and directing the USMS to serve a summons
and a copy of the Amended Complaint upon newly-added parties,
Shawn Brewer and James Roth. (DE 65 at 4.) Defendant Brewer
was subsequently served and appeared on October 29, 2018 (DE
71), but Defendant Roth remains unserved, despite several
attempts at service. (DEs 65, 68, 70, 93.) Accordingly,
Plaintiff now asks this Court to dismiss Defendant Roth so
this matter may proceed to trial. (DE 95 at 2.)
II.
Standard
Federal
Rule of Civil Procedure 21 provides, in relevant part, that
“[o]n motion or on its own, the court may at any time,
on just terms, add or drop a party.” See Grupo
Dataflux v. Atlas Global Group, L.P., 541 U.S. 567,
572-73 (2004) (“By now, ‘it is well settled that
Rule 21 invests district courts with authority to allow a
dispensable nondiverse party to be dropped at any
time[.]'”); see also Philip Carey Mfg. Co. v.
Taylor, 286 F.2d 782, 785 (6th Cir. 1961) (“[W]e
think that [Rule 21] is the one under which any action to
eliminate” a single defendant should be taken). This
rule applies where “no relief is demanded from one or
more of the parties joined as defendants.” Letherer
v. Alger Grp., LLC, 328 F.3d 262, 267 (6th Cir. 2003),
overruled on other grounds by Blackburn v. Oaktree
Capital Mgmt., LLC, 511 F.3d 633, 636 (6th Cir. 2008).
In exercising its discretion under Rule 21, the court must
consider prejudice to the nonmoving party. See Arnold v.
Heyns, No. 13-14137, 2015 WL 1131767, at *4 (E.D. Mich.
Mar. 11, 2015) (explaining that “the question is
whether the defendant would suffer ‘plain legal
prejudice' as a result of the dismissal”).
III.
Analysis and Order
Here,
Plaintiff seeks to dismiss Defendant Roth, who remains
unserved despite several attempts at service, so that this
case may proceed to trial. (DE 95 at 2.) The Court finds
that, based upon Plaintiff's representations, the
considerations of fundamental fairness and judicial economy,
and lack of prejudice to Defendants (as Defendants have not
responded or otherwise opposed this motion), that Defendant
James Roth should be dismissed. Accordingly, Plaintiff's
motion to drop unserved defendant (James Roth) (DE 95) is
GRANTED.
IT
IS SO ORDERED.
The
attention of the parties is drawn to Fed.R.Civ.P. 72(a),
which provides a period of fourteen (14) days from the date
of receipt of a copy of this order within which to file
objections for consideration by the district judge under 28
U.S.C. § 636(b)(1).[1]
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Notes:
[1] Pursuant to 28 U.S.C. §
636(b)(1)(A), a United States Magistrate Judge is empowered
to “hear and determine any pretrial matter pending
before the court, ” subject to eight specifically
delineated exceptions. See 28 U.S.C. §
636(b)(1)(A). The only motions that a magistrate judge is
statutorily precluded from determining are: (1) motions for
injunctive relief; (2) motions for judgment on the pleadings;
(3) motions for summary judgment; (4) motions to dismiss or
quash an indictment or information made by a defendant; (5)
motions to suppress evidence in a criminal case; (6) motions
to dismiss or permit maintenance of a class action; (7)
motions to dismiss for failure to state a claim upon which
relief can be granted; and (8) motions to involuntarily
dismiss an action (pursuant to Rule 41). Id.;
see also E.D. Mich. LR 7.1(e)(1)(A) (listing
dispositive motions). Because Plaintiff's unopposed
motion to voluntarily dismiss James Roth, pursuant to Rule
21, is not enumerated as an exception in 28 U.S.C. §
636(b)(1)(A), and involves a non-dispositive matter which
does not put an end to the proceedings before the Court, an
opinion and order is effective. See Nucorp, Inc. v.
Does, No. 2:11-CV-15222, 2012 WL 12961115, at *4 n.1
(E.D. Mich. Oct. 18, 2012) (“There is no question that
a magistrate judge has jurisdiction to hear and determine
both a ...