Opinion
1:21-cv-02713-JPH-MJD
07-18-2022
BP2 CONSTRUCTION, LLC, Plaintiff, v. CITY OF SEYMOUR, INDIANA, Defendant.
REPORT AND RECOMMENDATION
Mark J. Dinsmore United States Magistrate Judge
Jason M. Smith, counsel for Plaintiff, was reciprocally suspended from the practice of law in this District on April 4, 2022. See In re: Smith, 1:22-mc-00017-TWP-DLP [Dkt. 4]. Pursuant to the Court's April 4, 2022, Order Imposing Discipline in that case, Mr. Smith was ordered to do the following:
(1) provide notification of his suspension to Plaintiff BP2 Construction, LLC, in this matter;
(2) advise Plaintiff BP2 Construction to procure competent replacement counsel and assist it with doing so, if requested; and
(3) file a motion to withdraw Mr. Smith's appearance on behalf of Plaintiff BP2 Construction, LLC, in this matter.1:22-mc-00017-TWP-DLP [Dkt. 4 at 4].
On May 16, 2022, the Court issued an Order to Show Cause [Dkt. 41] setting a deadline of May 23, 2022 for Mr. Smith to file the following in this matter:
(1) a notice certifying that he has provided notice of his suspension to Plaintiff BP2 Construction, LLC, as well as advised BP2 Construction to procure competent replacement counsel; and
(2) a motion to withdraw his appearance for Plaintiff BP2 Construction, LLC.[Dkt. 41 at 1-2.]
Mr. Smith failed to file a notice of motion to withdraw as required by the May 23, 2022 deadline. As a result, and in light of Mr. Smith's suspension from the practice of law in this District, on May 24, 2022, the Court terminated Mr. Smith's representation of Plaintiff BP2 Construction, LLC in this matter. [Dkt. 43.]
In addition, the Court ordered Plaintiff BP2 Construction, LLC to obtain new counsel and for such counsel to enter an appearance in this matter because, as a corporate entity, BP2 Construction, LLC, cannot represent itself. See Nocula v. UGS Corp., 520 F.3d 719, 725 (7th Cir. 2008). [Dkts. 41 & 45.] The Court initially set a deadline of June 15, 2022 for new counsel to appear for BP2 Construction, which was subsequently enlarged to July 15, 2022. [Id.] If new counsel did not appear for BP2 Construction by the July 15, 2022 deadline, then Plaintiff BP2 Construction, LLC was ordered to show cause by that same date, why Plaintiff's claims against Defendant in this matter should not be dismissed for Plaintiff's failure to appear and prosecute this action. [Id].
To date, new counsel has not appeared for BP2 Construction, LLC, nor has BP2 Construction, LLC shown cause why its claims against Defendant should not be dismissed. Consequently, the Magistrate Judge recommends dismissal of Plaintiff's claims against Defendant in this matter for Plaintiff's failure to appear to prosecute this action.
Any objections to the Magistrate Judge's Report and Recommendation shall be filed with the Clerk in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), and failure to timely file objections within fourteen days after service shall constitute a waiver of subsequent review absent a showing of good cause for such failure.
SO ORDERED.