Opinion
CV421-247
10-25-2021
JIMMIE SAUNDERS, Plaintiff, v. WALMART, INC., d/b/a Walmart Neighborhood Market, Defendant.
ORDER
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE
Plaintiff and Defendant, having jointly moved the Court for an order under Fed.R.Civ.P. 21 to add Wal-Mart Stores East, LP as a proper party and to dismiss Walmart, Inc. d/b/a Walmart Neighborhood Market as an improper party to this action, and to recast the caption of the Complaint, doc. 11; and the Court, having considered said motion, hereby GRANTS the parties' motion to add Wal-Mart Stores East, LP. The Court RECOMMENDS that Walmart, Inc. d/b/a Walmart Neighborhood Market be DISMISSED without prejudice.
The undersigned's authority to grant a request to voluntarily dismiss a party is, at best, ambiguous. Federal Rule of Civil Procedure 72(b) requires a magistrate judge, in any pretrial motion “dispositive of a claim or defense” to “enter a recommended disposition, ” subject to a fourteen-day objections period and de novo review by the district judge. Id. Generally, “[o]rders granting leave to amend are non-dispositive, as they do not remove claims or defense of a party.” Vanderwalker v. Quandt's Food Serv. Distribs., Inc., 934 F.Supp. 42, 48 (N.D.N.Y. 1996). However, the parties' motion seeks disposition and removal of all claims against Walmart, Inc. d/b/a Walmart Neighborhood Market. Doc. 11. There is some authority that a magistrate judge has authority to correct a misnomer, effectively dismissing the misnamed defendant and substituting the properly named defendant. See Knutson v. Walker Grp., Inc., 343 F.Supp.2d 971, 973 (D. Colo. 2004) (misnamed defendant filing a motion to dismiss “does not convert plaintiff's request to correct the name of the party into a dispositive motion.” (citing Fed.R.Civ.P. 15, 17)); Sams v. GA West Gate, LLC, 2016 WL 3339764, at * 3 (S.D. Ga. June 10, 2016) (“In the meantime, pursuant to Rule 21, the Court removes [a defendant] as a party.”). Other courts, however, have treated dismissals under Fed.R.Civ.P. 21 as requiring Rule 72's Report and Recommendation procedure. See, e.g., Uniloc 2017, LLC v. Google, LLC, 2019 WL 6002205, at * 1 (E.D. Tex. Sept. 10, 2019); Core Labs. LP v. AmSpec, LLC, 2017 WL 1407652, at * 1 (S.D. Ala. Apr. 19, 2017). Even courts that treat such motions as within the magistrate judge's power are not wholly confident. See Foden v. Floyd, 2019 WL 2343676, at * 2, n.1 (E.D. Mich. May 31, 2019) (“Because Plaintiff's unopposed motion to voluntarily dismiss [a defendant], pursuant to Rule 21, is not enumerated as an exception in 28 U.S.C. § 636(b)(1)(A), and involves a non-dipositive matter which does not put an end to the proceedings before the Court, an opinion and order is effective. [Cit.] However, to extent the parties disagree, they may treat the Court's order on this motion as a report and recommendation and file any objections within 14 days of service, as provided for in Fed.R.Civ.P. 72(b)(2) . . . .”).Given that ambiguity, the Court grants the motion, but should any party object to the dismissal of Walmart, Inc. d/b/a Walmart Neighborhood Market within fourteen days, the Clerk is DIRECTED to convert this Order into a Report and Recommendation. Upon conversion of this Order into a Report and Recommendation, the Clerk shall submit the R&R together with any objections to the assigned district judge. The district judge will review the magistrate judge's findings and recommendation pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to timely file objections will result in the waiver of rights on appeal. 11th Cir. R. 3-1; see Symonette v. V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 Fed.Appx. 542, 545 (11th Cir. 2015).
Subject to the terms of this Order, when Walmart, Inc. d/b/a Walmart Neighborhood Market is dismissed, the caption of this Complaint will hereinafter be styled as Jimmie Saunders, Plaintiff v. Wal-Mart Stores East, LP, Defendant. It is further ordered Wal-Mart Stores East, LP shall be substituted each and every place Walmart, Inc. d/b/a Walmart Neighborhood Market is named in any pleadings as if Walmart, Inc. d/b/a Walmart Neighborhood Market had never been named.
SO ORDERED,