Wilson v. Watson

• Decision Date: 29 July 2019
• Docket Number: No. 3:19-cv-471-S-BN,3:19-cv-471-S-BN
• Parties: TYONDA WILSON, Plaintiff, v. WILLIS TOWERS WATSON, Defendant.
• Court: U.S. District Court — Northern District of Texas

TYONDA WILSON, Plaintiff,
v.
WILLIS TOWERS WATSON, Defendant.

No. 3:19-cv-471-S-BN

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

July 29, 2019

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Tyonda Wilson brings this pro se action against her former employer, alleging retaliation in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (the "ADEA"). See Dkt. No. 3. Her action has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Karen Gren Scholer.

On April 5, 2019, the deadline for Ms. Wilson to file an amended motion for leave to proceed in forma pauperis ("IFP") and verified responses to the screening questionnaire, see Dkt. Nos. 5 & 6, she filed a Motion for Leave, Extension or Dismissal Without Prejudice [Dkt. No. 7], requesting "an extension, continuance or dismissal without prejudice" because she has "not been able to research and provide the necessary time to this case due to the long hours trying to earn money driving for Lyft."

The Court responded by entering a notice of deficiency on April 8, 2019 [Dkt. No. 8] (the "NOD"):

Page 2

To the extent that Ms. Wilson requests that her case be dismissed without prejudice, this filing could be construed as a notice of dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(i), which is self-executing. See FED. R. CIV. P. 41(a)(1)(A) (subject to some exceptions, "the plaintiff may dismiss an action without a court order by filing: ... (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment"); see also Matthews v. Gaither, 902 F.2d 877, 880 (11th Cir. 1990) (per curiam) (a notice of dismissal under Rule 41(a)(1)(A)(i) "is effective immediately upon filing"); Taylor v. Tesco Corp. (US), 816 F. Supp. 2d 410, 411 (S.D. Tex. 2011) ("Although styled a 'motion to dismiss,' Plaintiff's ... filing had the effect of a Rule 41(a)(1) notice of dismissal as to any defendants who had not yet served either an answer or a motion for summary judgment." (citing Matthews, 902 F.2d at 880)); Williams v. Ezell, 531 F.2d 1261, 1263-64 (5th Cir. 1976) ("At the time plaintiffs filed their motion to dismiss the case was effectively terminated.").
An unambiguous Rule 41(a)(1)(A)(i) notice divests the Court of jurisdiction. See Qureshi v. United States, 600 F.3d 523, 525 (5th Cir. 2010). But Ms. Wilson is proceeding pro se. And the dismissal of this action even without prejudice, see FED. R. CIV. P. 41(a)(1)(B), could operate to dismiss her claims with prejudice, see Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992) ("If a Title VII complaint is timely filed pursuant to an EEOC right-to-sue letter and is later dismissed, the timely filing of the complaint does not toll the ninety-day limitations period." (citation omitted)); Bluitt v. Houston Indep. Sch. Dist., 236 F. Supp. 2d 703, 715 (S.D. Tex. 2002) ("[A]s with a Title VII claim, an ADEA claim must be filed within ninety days after receipt of a notice of right to sue." (citing 29 U.S.C. § 626(e); St. Louis v. Tex. Worker's Comp. Comm'n, 65 F.3d 43, 47-48 (5th Cir. 1995))).
Ms. Wilson must therefore file a written response to this order no later than May 8, 2019 to confirm that she wishes to dismiss this litigation. She may, alternatively, file by that date her amended motion for leave to proceed IFP and verified responses to the screening questionnaire. But failure to take any action by that date will result in a recommendation that her complaint be dismissed for failure to prosecute and obey orders of the Court under Federal Rule of Civil Procedure 41(b).

Id.

It is now almost three months past the...