United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
Fashing, United States Magistrate Judge.
MATTER comes before the Court on defendant Tavenner's
Towing & Recovery and Michael Tavenner's Motion to
Dismiss in Lieu of Answer filed April 17, 2017. Doc. 6. Pro
se plaintiff James Simones did not respond to the motion
within the prescribed time period.Accordingly, defendants filed
a notice of completion of briefing on May 8, 2017. Doc. 11.
Plaintiff submitted a response to defendants' motion on
May 24, 2017, entitled “Answer to Defendant's [sic]
Motion to Dismiss in Lieu of Answer with Plaintiff's
Motion to Dismiss Without Prejudice.” Doc. 14. Pursuant
to 28 U.S.C. §§ 636(b)(1)(B), (b)(3), and Va.
Beach Fed. Sav. & Loan Ass'n v. Wood, 901 F.2d
849 (10th Cir. 1990), the Honorable M. Christina Armijo
referred this case to me on May 22, 2017, “to conduct
hearings, if warranted, including evidentiary hearings, and
to perform any legal analysis required to recommend to the
Court an ultimate disposition of the case.” Doc. 13.
Having reviewed the submissions of the parties and being
fully apprised in the premises, I find that in his response,
plaintiff voluntarily requests that the Court dismiss his
case pursuant to Rule 41 and, therefore, recommend that this
case be dismissed without prejudice.
Background and Procedural Posture
initiated this case in Seventh Judicial District Court,
County of Torrance, State of New Mexico. See Doc. 1
at 1; Doc. 1-1 at 1. Defendants removed the case to this
Court because plaintiff's complaint alleges violations of
his Fourth and Fifth Amendment rights. Doc. 1 at 1; Doc. 1-1
at 2. Defendants then filed a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6), contending that plaintiff failed to
state a claim for which relief may be granted. Doc. 6. As
noted above, plaintiff did not respond in a timely fashion,
which prompted defendants to file a notice of completion of
briefing. Doc. 11. Plaintiff filed an untimely response on
May 24, 2017. In his response, plaintiff explains that he had
a medical issue which required surgery on April 10, 2017, and
other injuries that “[made] it impossible for him to
sufficiently advance his claim in Case
1:17-cv-00434-[MCA]-LF.” Doc. 14. Accordingly,
plaintiff requests that the Court dismiss this case without
Timeliness of Plaintiff's Response
the failure of a party to file and serve a response to a
motion within the time prescribed constitutes consent to
grant that motion. D.N.M.LR-Civ. 7.1(b). The Court may extend
the time to file a response at the request of a party if the
party failed to act because of excusable
neglect. Fed.R.Civ.P. 6(b)(1)(B). While courts will
liberally construe a pro se party's pleadings, pro se
parties are not exempt from following the rules of procedure
based on their pro se status. See Kay v. Bemis, 500
F.3d 1214, 1218 (10th Cir. 2007) (noting that the Tenth
Circuit has “repeatedly insisted that pro se parties
follow the same rules of procedure that govern other
litigants”) (internal quotation marks omitted).
plaintiff explains that he was unable to respond to
defendants' motion due to surgery and complications of
recovery. Although plaintiff does not indicate that the
surgery was an emergency, it appears that the recovery was
more complicated than expected. See Doc. 14.
Further, allowing the response will not prejudice the
defendants because, in his response, plaintiff asks the Court
to dismiss his complaint. Accordingly, I find excusable
neglect for plaintiff's failure to respond to the motion
can voluntarily dismiss his or her case without a court by
filing a notice of dismissal before the opposing party has
served its answer or a motion, or by filing a stipulation of
dismissal signed by all parties. Fed.R.Civ.P. 41(a)(1)(A).
After an opposing party has filed an answer or a motion,
“an action maybe dismissed at the plaintiff's
request only by court order, on terms that the court
considers proper.” Fed.R.Civ.P. 41(a)(2). Here, because
the defendants have served their motion to dismiss and the
parties have not stipulated to dismissal, the Court will need
to issue an order dismissing this case.
on the foregoing reasons, I recommend that:
1) The Court accept plaintiff's response to
defendants' motion to dismiss as timely; and
2) Pursuant to plaintiff's voluntary dismissal under Rule
41, the Court dismiss this ...