Opinion
Civil Action No. SA-04-CA-0856 RF (NN).
June 7, 2005
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. W. Royal Furgeson United States District Judge
The matter before the court is the status of this case. I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
Plaintiff commenced this action on September 22, 2004 (docket entry 1). On March 1, 2005, defendant filed its first motion to dismiss (docket entry 12). In response to the motion to dismiss, plaintiff filed, inter alia, a motion for leave to amend his original complaint on March 14, 2005 (docket entry 17). After Honorable District Judge W. Royal Furgeson granted plaintiff's motion for leave to amend his complaint (docket entry 19), I issued a memorandum and recommendation which recommended that defendant's motion to dismiss be denied as moot (docket entry 20). My memorandum and recommendation was accepted by Judge Furgeson (docket entry 35).
On March 21, 2005, plaintiff filed his first amended complaint (docket entry 21). Shortly thereafter, defendant brought its second motion to dismiss (docket entry 25). On April 21, 2005, plaintiff filed a motion for leave to amend his first amended original complaint (docket entry 31) and a response to defendant's second motion to dismiss (docket entry 30). In his response to the motion to dismiss plaintiff asserted:
Undersigned counsel has taken the opportunity to brief the issues raised by opposing counsel in its Motion to Dismiss. In light of case law supporting DEFENDANT'S contentions, PLAINTIFF will not object to the granting of DEFENDANT'S Motion to Dismiss. Such agreement, however, should not be construed as an indication that PLAINTIFF believes that DEFENDANT acted properly and/or that liability cannot be implicated upon it based on such actions, omissions, and/or policies and procedures of ADVANCE STORES COMPANY, INC. PLAINTIFF'S Second Amended Original Complaint reflects the changes requested by DEFENDANT in its Motion to Dismiss.
Docket Entry 30, at 2-3 (emphasis added).
Based on plaintiff's response to defendant's motion to dismiss, it is clear that plaintiff did not oppose the motion as plaintiff believed his motion for leave to amend would be granted.
On April 27, 2005, I issued an order and opinion striking plaintiff's motion for leave to amend his first amended original complaint (docket entry 34). In that order, I explained that plaintiff failed to include a certificate of conference in his motion in violation of Local Rule CV-7(h). ( Id ). I further held:
Plaintiff can re-urge his request for leave to amend the amended complaint by filing a motion in conformance with Rule CV 7(h).
Docket Entry 34.
After plaintiff failed to file a proper motion for leave to amend his complaint, I issued an order and opinion on May 20, 2005 (docket entry 36). In that order, I explained that plaintiff conceded that dismissal was appropriate as to the operative complaint on file. I further ordered plaintiff to file an appropriate motion for leave to amend his complaint no later than May 27, 2005. I warned plaintiff that failure to respond to my order could warrant dismissal pursuant to Federal Rule of Civil Procedure 41(b).
As of the date of writing, plaintiff has not filed a motion for leave to amend nor filed any pleading in response to my order. Federal Rule of Civil Procedure 41(b) authorizes dismissal of a plaintiff's complaint by court order. The Rule allows dismissal of a case for "failure of the plaintiff to prosecute or to comply with these rules or any order of court . . ."
In this case, plaintiff has failed to prosecute his case and to comply with an order of this court. In addition, plaintiff's current complaint fails to state a claim upon which relief might be granted. For these reasons, I hereby recommend that plaintiff's complaint be DISMISSED pursuant to Federal Rules of Civil Procedure 41(b) and 12(b)(6).
Under Federal Rule of Civil Procedure 12(b)(6) a complaint may properly be dismissed when it fails to state a claim upon which relief might be granted.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Report and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), any party who desires to object to this report must serve and file written objections to the Report and Recommendation within ten (10) days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings. Conclusions, or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation within ten (10) days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuña v. Brown Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000), cert. denied, 530 U.S. 1229 (2000).
Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).