Opinion
7:19-cv-147 (WLS)
08-04-2021
CHRISTOPHER ALEXANDER, et al., Plaintiffs, v. SOUTHEAST CORRECTIONS, LLC, Defendant.
ORDER
W. LOUIS SANDS, SR. JUDGE UNITED STATES DISTRICT COURT
Before the Court is Defendant's “unopposed” motion to dismiss with prejudice the claims of Plaintiffs Christopher Alexander and John Hitt. (Doc. 39.) Defendant states that Plaintiff's counsel has not been able to make contact with Alexander or Hitt in more than a year despite diligent efforts and that these Plaintiffs have not participated in discovery or the recent mediation with the other Plaintiffs. Id. at 2-3. Defendant states that Hitt “failed to respond to requests for the production of documents, interrogatories, and failed to attend a noticed deposition” and that Plaintiff's counsel was unable to reach Alexander to obtain his availability for a deposition. Id. at 4-5. Defendant asks that the Court dismiss Plaintiff Hitt's and Plaintiff Alexander's claims pursuant to Rules 37(d) and 41(B) “for their failure to respond to discovery, failure to attend a deposition, their failure to prosecute their claims, and for their failure to comply with the Federal Rules of Civil Procedure.” Id. at 5. Defendant argues that “[a] sanction less than dismissal would be futile here because Plaintiffs' counsel has been unable to resume communication with either remaining Plaintiff.” Id.
More than twenty-one days have now elapsed, and no response was filed. However, although Defendant attached emails with opposing counsel in December 2020 regarding setting depositions (Doc. 39-1), the record does not yet establish that Hitt and Alexander have abandoned their case and that dismissal with prejudice is appropriate. Accordingly, Plaintiffs Hitt and Alexander are hereby ORDERED to show cause by responding to this order no later than Monday, August 16, 2021 why their claims should not be dismissed with prejudice for failure to prosecute. Failure to timely respond will result in the prompt dismissal of their claims with prejudice pursuant to Rule 41(b).
Indeed, a motion for a sanction under Rule 37 is untimely as discovery closed months earlier. See Doc. 8 at 2.
SO ORDERED