stating that the district court possesses the power to dismiss sua sponte under Rule 41(b)
How later courts described this case
- stating that the district court possesses the power to dismiss sua sponte under Rule 41(b)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
JACK DANIEL CONNER, on behalf of PLAINTIFF
J.B.C., a minor
V. CASE NO. 3:18-CV-03104
CHARLES RICHARD HURLEY and
DOUGLAS EUGENE NIENDICK DEFENDANTS
ORDER
Plaintiff Jack Daniel Conner, on behalf of J.B.C., a minor, filed his Complaint on
October 3, 2018, pro se. The mailing address he provided in the Complaint was 68
California Lane, Theodocia, MO 65761 (Doc. 1). Along with the Complaint, he filed a
Motion for Leave to Proceed In Forma Pauperis (Doc. 3), which was granted by text-only
Order (Doc. 5) on December 4, 2018. After the Court screened Plaintiff's claims pursuant
to 28 U.S.C. § 1915(e)(2), service was effected upon Defendant Charles Richard Hurley.
Service was also attempted upon Defendant Douglas Eugene Niendick, but the summons
and Complaint were returned, marked “unable to forward.” (Doc. 14). Plaintiff did not
provide the Court with a new address for Mr. Niendick.
On November 7, 2018, Defendant Hurley filed a Motion to Dismiss the Complaint
(Doc. 11) and Brief in Support (Doc. 12). Thereafter, on November 8, 2018, the Court
issued its Initial Scheduling Order (Doc. 13), which directed the parties to, among other
things: (1) exchange initial disclosures and produce core discovery documents, (2) jointly
conduct a Rule 26(f) conference by November 29, 2018, and (3) file with the Court a joint
Rule 26(f) Report by December 13, 2018. The Clerk of Court mailed a copy of the Initial
Scheduling Order to Plaintiff at the address he provided, and no mail was returned as
undeliverable.
On December 13, 2018, the date the Joint Rule 26(f) Report was due, Defendant
Hurley’s counsel filed a unilateral Report (Doc. 15). In that Report, counsel states that he
attempted to contact Plaintiff at his mailing address by mailing him a letter (Doc. 15-1) via
U.S. First Class Mail and by U.S. Mail Certified-Return-Receipt. Counsel further states
that he tracked the certified letter, and as of December 13, it remained unclaimed. Plaintiff
has had no contact with Defendant’s counsel at any time, and he has had no contact with
the Court since the Complaint was filed. Plaintiff also failed to file a response to the _
Motion to Dismiss.
Under these circumstances, the Court finds that Plaintiff has not complied with the
Initial Scheduling Order (Doc. 13). He has not sought an extension of time to comply. He
has not contacted the Court or defense counsel in any way, and no mail addressed to
Plaintiff by the Court has been returned as undeliverable. The Federal Rules of Civil
Procedure specifically contemplate dismissal of a case on the ground that the plaintiff
failed to prosecute or failed to comply with order of the court. Fed. R. Civ. P. 41(b); Line
v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (stating that the district court possesses
the power to dismiss sua sponte under Rule 41(b)). Pursuant to Rule 41(b), a district
court has the power to dismiss an action based on “the plaintiff's failure to comply with
any court order.” Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) (emphasis added).
Additionally, Rule 5.5(c)(2) of the Local Rules for the Eastern and Western Districts of
Arkansas requires parties appearing pro se to monitor the case, and to either prosecute
or defend the action diligently. Here, Plaintiff has failed to prosecute his case, and,
pursuant to Rule 41(b), his Complaint should be and hereby is DISMISSED WITHOUT
PREJUDICE.
gears
IT IS SO ORDERED on this dl day of oT 2018.
AC
YOTHY L. BROOKS
UNITED STATES’ DISTRICT JUDGE