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
FAYETTEVILLE DIVISION
MATTHEW A. SMITH PLAINTIFF
v. CIVIL NO. 5:19-CV-5177
WALMART DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On September 17, 2019, Plaintiff, Matthew A. Smith, filed a Complaint in the above
referenced case, asserting claims potentially related to employment discrimination. (Doc. 1).
Also, on that day, Plaintiff filed a motion to proceed in forma pauperis (IFP) and for service
upon the named Defendant. (Doc. 3).
By Order entered on September 19, 2019, Plaintiff was directed to complete and file
his Complaint on a form Complaint for Employment Discrimination and also submit his EEOC
Notice of Suit Rights. (Doc. 5). Plaintiff was also directed to provide the Court with additional
information regarding his IFP motion. The deadline set for Plaintiff was October 2, 2019.
Plaintiff failed to comply with the Court’s Order and an Order to Show Cause was entered on
October 7, 2019, directing Plaintiff to show cause on or before October 21, 2019, why the suit
should not be dismissed. (Doc. 6).
On October 21, 2019, Plaintiff filed a Motion for Stay of Execution and a Motion for
Joinder of Parties. (Docs. 7, 8). Plaintiff’s Motion for Joinder of Parties was denied as moot
by way of a text only Order entered on October 24, 2019. Also, on October 24, 2019, the Court
entered an Order granting Plaintiff’s Motion for Stay of Execution, to the extent that the case
would be administratively terminated. (Doc. 11). Plaintiff was provided 120 days in which to
file a Motion to Reopen, and with that motion, Plaintiff was directed to submit the Complaint
for Employment Discrimination along with the EEOC Notice of Suit Rights; to provide the
Court with an explanation as to why he was unable to pay the filing fee based on a net income
of $1553.53 a month, after expenses; and to explain why Plaintiff reported on his application
that he did not expect any major changes in monthly income, but also stated that he was not
making a continuous income. (Doc. 11). Plaintiff’s Motion to Reopen was to be filed by
February 21, 2020. To date, Plaintiff has not filed a Motion to Reopen.
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 an 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 prosecute or defend
the action diligently.
Based on the foregoing, the undersigned recommends dismissing Plaintiff’s case
without prejudice based on Plaintiff’s failure to prosecute the case pursuant to Rule 41(b) and
his failure to comply with Local Rule 5.5(c)(2). The parties have fourteen days from receipt
of this Report and Recommendation in which to file written objections pursuant to 28
U.S.C. § 636(b)(1). The failure to file timely objections may result in waiver of the right
to appeal questions of fact. The parties are reminded that objections must be both timely
and specific to trigger de novo review by the district court.
DATED this 26th day of February 2020.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE