Vilela v. Office of Recovery Servs.

Full title: PEDRO VILELA, Plaintiff, v. OFFICE OF RECOVERY SERVICES, STATE OF UTAH…

Court: United States District Court, District of Utah

Date published: Jun 13, 2023

2:22-cv-00699 (D. Utah Jun. 13, 2023)

Opinion

2:22-cv-00699

06-13-2023

PEDRO VILELA, Plaintiff, v. OFFICE OF RECOVERY SERVICES, STATE OF UTAH CHILD SUPPORT ENFORCEMENT, LIESA STOCKDALE, AMY JONKHART, MARIAN ITO and UTAH COUNTY FOURTH DISTRICT COURT, Defendants.

DUSTIN B. PEAD MAGISTRATE JUDGE UNITED STATES DISTRICT COURT

District Court Judge David Barlow

REPORT & RECOMMENDATION

DUSTIN B. PEAD MAGISTRATE JUDGE UNITED STATES DISTRICT COURT

BACKGROUND

The case is before the undersigned pursuant to a 28 U.S.C. § 636(b)(1)(B) referral from District Court Judge David Barlow (ECF No. 9, Order of Reference).

On March 23, 2023, the undersigned denied Defendants' Motion to Dismiss and ordered Plaintiff to file a second amended complaint by April 24, 2023 (ECF No. 36, Report and Recommendation). Plaintiff objected to the recommendation (ECF No. 37, Objection to Magistrate Judge Ruling). On April 6, 2023, the District Court issued a Memorandum Decision, overruling Plaintiff's objection and requiring him to file a second amended complaint no later than May 8, 2023 (ECF No. 38, Memorandum Decision). Plaintiff did not file a timely second amended complaint.

STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 41(b), “[if] the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Fed.R.Civ.P. 41(b). “Although the language of Rule 41(b) requires that the defendant file a motion to dismiss, the Rule has long been interpreted to permit courts [as here] to dismiss actions sua sponte for a plaintiff's failure to . . . comply with the rules of civil procedure or court's orders. Olsen v. Mapes, 333 F.3d 1199, 1205 n.3 (10^th Cir. 2003); see also Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10^th Cir. 2007) (citing Petty v. Manpower Inc., 591 F.2d 615, 617 (10^th Cir. 1979) (“a district court may, without abusing its discretion, enter such an order without attention to any particular procedures”)).

RECOMMENDATION

Throughout this litigation, Plaintiff has shown the ability to file pleadings. See generally, (ECF No. 12, Amended Complaint; ECF No. 22, Motion for Entry of Default; ECF No. 26, Opposition to Motion for Extension of Time to File Answer, ECF No. 30, Objection to Magistrate Judge Decision; ECF No. 34, Opposition to Motion to Dismiss for Failure to State a Claim). Yet, irrespective of his legal abilities, Plaintiff failed to comply with the District Court's Order requiring him to file a second amended complaint no later than May 8, 2023. Federal Rule 41(b) allows for dismissal of an action based on a plaintiff's failure to comply with court orders. Fed.R.Civ.P. 41(b). Further, in failing to file a second amended complaint Plaintiff has not cured the defects of his original pleading, as identified in this court's March 23, 2023 Recommendation and affirmed by the District Court. (ECF No. 38, Memorandum Decision) (“the complaint does not meet Rule 8's minimum pleading requirements nor the plausibility requirement”).

Accordingly, for these reasons, the Court hereby RECOMMENDS that Plaintiff's case be dismissed without prejudice. Consistent therewith, the Clerk's Office is directed to send copies of this Report and Recommendation to all parties who are hereby notified of their right to object. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The parties must file any objection to this Report and Recommendation within fourteen (14) days of service. Failure to object may constitution waiver of the objections upon subsequent review.