# Zamora v. Pineda > District Court, W.D. Arkansas · March 10, 2020 URL: https://www.frixlaw.com/law-library/cases/10010521 ## Case - **Court:** District Court, W.D. Arkansas - **Decided:** March 10, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10010521 ## How later opinions describe it (automated extraction) - stating that the district court possesses the power to dismiss sua sponte under Rule 41(b) ## Opinion text IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION ANDREW LUIS ZAMORA PLAINTIFF V. CASE NO. 5:19-CV-05196 SERGEANT CARLOS PINEDA DEFENDANT OPINION AND ORDER Plaintiff Andrew Luis Zamora filed this 42 U.S.C. § 1983 action pro se and in forma pauperis on October 17, 2019. Before the Court are two Motions to Dismiss filed by the sole remaining Defendant Sergeant Carlos Pineda. (Docs. 14 & 20). Plaintiff has not responded to the Motions, and the time to do so has passed. The Court finds this matter ripe for consideration. Il. DISCUSSION The first Motion to Dismiss (Doc. 14) states that on November 26, 2019, Plaintiff was mailed a written notice of Defendant's intent to take Plaintiffs deposition. The copy of the Notice of Deposition was sent to 323 Callahan, Muskogee, OK 74403, the address of record listed for Plaintiff on the Court’s docket. The Notice of Deposition informed Plaintiff that the deposition was to be held on December 4, 2019, at the Washington County Detention Center, 1155 Clydesdale, Fayetteville, AR. The written notice was not returned as undeliverable. At approximately 10:29 a.m. on December 4, 2019, when Plaintiff did not appear for his deposition, Defendant's counsel went on the record and confirmed that Plaintiff had failed to appear. (Doc. 14-2 at 3). In the Motion to Dismiss, Defendant's counsel indicates that Plaintiff has not communicated with her. Defendant also notes that the last document Plaintiff filed with the Court was on November 15, 2019, when he submitted a change of address. (Doc. 10). Defendant requests that the case be dismissed. Alternatively, Defendant asks that he be awarded the reasonable costs, including attorney’s fees, caused by Plaintiffs failure to appear for the deposition pursuant to Federal Rule of Civil Procedure 37(d)(A)(i) and that the case be stayed until those costs are paid. Dismissal of a lawsuit, in whole or in part, is a proper sanction under Rule 37 of the Federal Rules of Civil Procedure. On January 6, 2020, the Court entered an Order (Doc. 16) directing Plaintiff to respond to Defendant's Motion to Dismiss by January 27, 2020. Plaintiff was advised that failure to timely and properly comply with the Order “shall result” in the dismissal of this action. The Order was mailed to the Plaintiffs address of record and has not been returned as undeliverable. To date, Plaintiff has not responded to the Motion to Dismiss nor sought an extension of time to do so nor communicated with the Court in any way. On February 5, 2020, the Court received a number of documents returned as undeliverable. (Docs. 9, 10, 12, 13, 17). No new address for the Plaintiff was provided. In accordance with the Court's earlier Order (Doc. 3), Plaintiff was given until March 6, 2020, to provide the Court with a new address. On February 11, 2020, Defendant filed a second Motion to Dismiss. (Doc. 20). In this Motion, Defendant moves to dismiss the case on the grounds that Plaintiff failed to appear at his deposition, failed to respond to the Court’s Order, and failed to keep the Court informed of his current address. Although pro se pleadings are to be construed liberally, a pro se litigant is not excused from complying with substantive and procedural law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984). Rule 5.5(c)(2) of the Local Rules for the Eastern and Western Districts of Arkansas states in pertinent part: It is the duty of any party not represented by counsel to promptly notify the Clerk and the other parties to the proceedings of any change in his or her address, to monitor the progress of the case, and to prosecute or defend the action diligently . . . lf any communication from the Court to a pro se plaintiff is not responded to within thirty (30) days; the case may be dismissed without prejudice. Any party proceeding pro se shall be expected to be familiar with and follow the Federal Rules of Civil Procedure. Local Rule 5.5(c)(2). Additionally, 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 orders of the court. Fed. R. Civ. P. 41(b); Link 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 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). ll. CONCLUSION Plaintiff failed to appear for his deposition, failed to obey an Order of the Court, and failed to prosecute this case. Therefore, pursuant to Federal Rules of Civil Procedure 37, 41(b) and Local Rule 5.5(c)(2), the Court finds that this case should be dismissed. Accordingly, Defendant’s Motions to Dismiss (Docs. 14 & 20) are GRANTED. The case is DISMISSED WITHOUT □□□ IT IS SO ORDERED on this lo day of March, 2020. _— AION AMG (L. BRE OOKS 4 UNITED S¥ATES DISTRICT JUDGE --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10010521. Public record. Not legal advice.