United States District Court, D. Colorado
EUGENE H. MATHISON, Plaintiff,
UNITED STATES OF AMERICA, CHRISTOPHER WILSON, D.O., RONALD CAMACHO, P.A., M.L.P., MARK KELLAR, R.N., HEALTH SERVICES ADMIN., D. ALLRED, D.O., CLINICAL DIRECTOR, GEORGE SANTINI, M.D., and FIVE JOHN/JANE DOES, Defendants.
RAYMOND P. MOORE JUDGE
This matter is before the Court on the following matters (collectively, “Papers”):
(1) Plaintiff’s Unopposed Motion to Dismiss Defendant United States (the “Unopposed Motion”) (ECF No. 71);
(2) Order and Recommendation of Magistrate Judge (the “Recommendation”) (ECF No. 74), recommending this case be administratively closed in light of Plaintiff’s bankruptcy filing;
(3) Plaintiff’s Motion to Recuse Magistrate Mix (the “Motion”) (ECF No. 76), because she recommended administrative closure;
(4) Plaintiff’s Objections to Magistrate Mix’s Recommendation to Administratively Close Case (the “Objection”) (ECF No. 77);
(5) Plaintiff’s Supplement to Objections to Magistrate Mix’s Recommendation to Administratively Close Case (the “Supplement”) (ECF No. 78), advising his Objection is moot as Plaintiff’s Bankruptcy Trustee was abandoning from the bankruptcy estate Plaintiff’s action before this Court; and
(6) Plaintiff’s Status Report Pursuant to Minute Order of 2/10/16 (the “Status Report”) (ECF No. 82), filed pursuant to 28 U.S.C. § 1746, advising the Court that any claim to the proceeds of this action has been abandoned by the Bankruptcy Trustee and Bankruptcy Court.
The Court has reviewed each of the Papers and finds they are ripe for consideration.
A. The Unopposed Motion
Starting with Plaintiff’s Unopposed Motion, Plaintiff cites no rule upon which the motion is based. Nonetheless, Plaintiff proceeds pro se; therefore, the Court reviews his pleadings and other papers liberally and holds them to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Trackwell v. United States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007).
There is uncertainty in the Tenth Circuit whether Fed.R.Civ.P. 21 or 41 applies to the dismissal of a party from an action involving more than one defendant. See Van Leeuwen v. Bank of Am., N.A., 304 F.R.D. 691, 692-97 (D. Utah 2015); see also Gobbo Farms & Orchards v. Pool Chem. Co., 81 F.3d 122, 123 (10th Cir. 1996) (Rule 41 “speaks of dismissal of an action, not just a claim within an action. [Plaintiff] offers no authority, and we have found none, to support its contention that Rule 41(a) applies to dismissal of less than all claims in an action.”). Moreover, pursuant to Rule 15, dismissal of a party may be had by an amendment of the complaint. Regardless, the Court agrees that, in most instances (such as the Unopposed Motion at issue), it is immaterial whether it acts under Rule 21 or 41. 9 Charles Alan Wright et al., Federal Practice and Procedure § 2362 (3d ed. 2008). Accordingly, Plaintiff’s Unopposed Motion is granted.
B. The Recommendation, Objection, Supplement, and Status Report
The Magistrate Judge’s Recommendation to administratively close this case was based on Plaintiff’s bankruptcy filing and the resulting uncertainty of when this case may proceed in light of the bankruptcy stay. Plaintiff’s Objection is based on such recommendation. Plaintiff has now represented to the Court that the Bankruptcy Trustee has abandoned this action as property of the bankruptcy estate, in accordance with the Notice of Abandonment. In his Supplement and Status Report, Plaintiff states the Bankruptcy Trustee’s abandonment of this action - thereby allowing this action to proceed - renders the Recommendation and Objection moot. That is true as it relates to the issue of whether this case may proceed. That is not true, however, as to the propriety of the Magistrate Judge’s recommendation in the first instance as ...