Opinion
Civ. File No. 00-1939 (PAM/JGL)
August 27, 2001.
MEMORANDUM AND ORDER
This matter is before the Court on Defendant's Motion to Dismiss. Defendant contends that Plaintiff has failed to prosecute his case and seeks to have Plaintiff's claim dismissed with prejudice. See Fed.R.Civ.P. 41(b). The Court held a hearing on the motion on August 24, 2001. For the reasons that follow, the Court grants the Defendant's Motion to Dismiss. However, Plaintiff's Complaint is dismissed without prejudice.
BACKGROUND
In August 2000, Plaintiff Michael Blazer filed a claim against Defendant Medical Concepts Development, Inc. ("MCD") alleging employment discrimination. Mr. Blazer then filed a motion for appointment of counsel. On August 22, 2000, Magistrate Judge Lebedoff referred Mr. Blazer to the Volunteer Lawyers Network ("VLN") and gave him 30 days to contact the VLN. On October 20, 2000, after determining that Mr. Blazer had not obtained counsel, Judge Lebedoff denied Mr. Blazer's motion for appointment of counsel. See October 10, 2000 Order (Clerk Doc. No. 8). Mr. Blazer continues to represent himself.
Both parties were served with a Notice of Pretrial Conference which was eventually scheduled for February 14, 2001. The Notice appropriately informed the parties of the required Rule 26(f) meeting. See Fed.R.Civ.P. 26(f). On December 26, 2000, MCD sent Mr. Blazer a draft of a Rule 26(f) Report, but he did not respond. Mr. Blazer then failed to attend the Pretrial Conference and did not contact MCD or the Court. On February 26, 2001, MCD served Mr. Blazer with discovery requests. Mr. Blazer did not respond to these requests.
DISCUSSION
There are two relatively straightforward issues in this case. The first is whether the case should be dismissed pursuant to Rule 41(b) for Mr. Blazer's failure to prosecute his claim. If the claim is to be dismissed, the second issue is whether this dismissal should be with or without prejudice.
A. Dismissal Pursuant to Rule 41(b)
Rule 41(b) provides that "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action." Fed.R.Civ.P. 41(b). MCD compares this case to a similar one from the 8th Circuit, DuBose v. State of Minnesota, 893 F.2d 169 (8th Cir. 1990). In DuBose, plaintiff failed to obtain counsel despite the court's grant of 30 days in which to do so, failed to appear at the pretrial conference set by the court, and failed to appear at trial. Id. at 170. Accordingly, the circuit court held that plaintiff had not prosecuted his claim and affirmed a dismissal of the case with prejudice, pursuant to Rule 41(b). Id. at 171. It is clear that this Court has the power to invoke such a sanction "in order to prevent undue delays in the disposition of pending cases and to avoid congestion." Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962).
Mr. Blazer has requested that this Court grant him a continuance. He argues that he needs legal representation and that his delay in prosecuting this case is not his fault. In essence, he claims that the VLN told him not to respond to MCD in any way. However, according to Mr. Blazer, the VLN has given him no other advice or support. Despite Mr. Blazer's claim, dismissal is appropriate in this case. Mr. Blazer simply has not, to date, taken any steps to pursue his claim against MCD and has not complied with mandates the of procedural law. Although Mr. Blazer is a pro se litigant, the 8th Circuit has made it clear that such litigants are not excused from compliance with substantive and procedural law. See Brugs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984).
B. Dismissal Without Prejudice Pursuant to Rule 41(b)
Nevertheless, Mr. Blazer's claim should be dismissed without prejudice. Although a dismissal pursuant to Rule 41(b) generally "operates as an adjudication upon the merits," the Rule allows the Court the flexibility to "specify otherwise." Fed.R.Civ.P. 41(b). The 8th Circuit has made it clear that courts should consider "whether in the particular circumstances of the case the needs of the court in advancing a crowded docket and preserving respect for the integrity of its internal procedures are sufficient to justify the harsh consequences of forever denying a litigant his [or her] day in court." Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193 (8th Cir. 1976). In general, "[c]ases should be dismissed with prejudice only where the plaintiff has intentionally delayed the action. . .or where the plaintiff has consistently and wilfully failed to prosecute his claim." Sterling v. United States, 985 F.2d 411, 412 (8th Cir. 1993) (per curiam); see also Brown v. Frey, 806 F.2d 801, 804 (8th Cir. 1986) (holding that plaintiff "did not engage in such a course of intentional delay or contumacious conduct as to warrant the drastic sanction of dismissal with prejudice"). In DuBose, for example, where the 8th Circuit affirmed a dismissal with prejudice, the court noted that the defendant "was attempting to `play games' with the court." DuBose, 893 F.2d at 170.
In this case, there is no evidence that Mr. Blazer has tried to "play games" with the Court. In fact, Mr. Blazer, in his letter to this Court, makes it clear that he wants to pursue his claim but that he honestly believes that he needs legal assistance to do so. MCD points out that Mr. Blazer did not get an attorney from the VLN within the 30-day period granted by Judge Lebedoff, failed to appear at the pretrial conference, and failed to respond to Defendant's discovery requests. While these facts demonstrate that Mr. Blazer has not prosecuted his claim within the meaning of Rule 41(b), the facts do not evidence the kind of willful neglect or "contumacious conduct" required to grant a dismissal with prejudice.
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss (Clerk Doc. No. 15) is GRANTED. Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.