Opinion
Case No. 03-10462, Adversary No. 03-5055
September 24, 2003
Defendant Educational Credit Management Corporation (ECMC) has moved to dismiss Plaintiffs Complaint against it due to her failure to prosecute the Complaint. Plaintiff has failed to respond to the Motion to Dismiss, and the Court will therefore consider the motion as uncontested pursuant to D. Kan. Rule 7.4.
Plaintiff filed this Complaint against Sallie Mae on February 5, 2003, seeking to discharge certain student loans pursuant to 11 U.S.C. § 523(a)(8). ECMC filed an Answer February 26, 2003, and sought to be added as a party, because defendant Sallie Mae had assigned certain loans to it. Counsel for ECMC sent a copy of its Motion to be added as a party, and a proposed order, to Plaintiff on February 25, 2003, but she never responded. An order adding ECMC as a defendant was ultimately filed June 6, 2003. On February 26, 2003, simultaneously with filing its Answer, ECMC also served discovery on Plaintiff. (Doc. No. 6). Plaintiff never answered that discovery or filed a certificate of service regarding that discovery.
Defendant Sallie Mae sought and received a Clerks ten day extension of time to answer, but has never answered. Counsel for Sallie Mae entered his appearance, however, and appeared at two scheduling conferences.
The Court mailed a Scheduling Notice April 2, 2003, requiring the parties to confer and file a Report of Parties [ ] Planning Meeting for a hearing to be held May 21, 2003. Plaintiff moved, and provided the Court no forwarding address, as required by F.R.Bankr.P. 4002(5), and thus did not attend the May 21, 2003 Scheduling Conference. Counsel for both defendants ECMC and Sallie Mae appeared. A second Scheduling Conference was set for July 15, 2003, and a new address located for Plaintiff. Because the Court was not convinced notice had been sent to the correct address for Plaintiff, the matter was continued, again, to August 19, 2003. Counsel for both defendants ECMC and Sallie Mae appeared before the Court on July 15, 2003.
On July 21, 2003, ECMC filed a Motion to Dismiss this Adversary Proceeding for lack of prosecution, including Plaintiff's failure to respond to discovery issued in February, and her failure to attend and participate in the Scheduling Conferences, including drafting a Parties DPlanning Meeting Report. On August 14, 2003, this Court sent a letter to Plaintiff advising her that a response to ECMCE[ ]s Motion to Dismiss had been due August 13, 2003. The Court gave her ten (10) additional days to file a response, and cautioned her that if she did not file a response, the motion would be deemed uncontested pursuant to D. Kan. Rule 7.4.
Plaintiff still filed no response, and has not served discovery responses or otherwise made any attempt to participate in this litigation. Counsel for ECMC represented to the Court that he had contact with Plaintiff, and she had indicated a desire to attempt to resolve her student loans through the William D. Ford program. Plaintiff has made no effort to prosecute this lawsuit against Defendants ECMC and Sallie Mae. She has failed to attend court hearings, and to respond to discovery. She failed to respond to ECMC's Motion to Dismiss. She has done nothing to prosecute the lawsuit since filing it in over six months ago. Accordingly, the Court finds the Complaint against ECMC is dismissed, without prejudice.
Although counsel for Sallie Mae has orally represented to the Court that all Sallie Mae loans were, in fact, sold to defendant ECMC, Sallie Mae has never filed an answer, nor has Plaintiff made any attempt to prosecute a default judgment against Sallie Mae. The Court thus directs Plaintiff to show cause in writing on or before October 7, 2003, why her complaint against Sallie Mae should not be dismissed for lack of prosecution. If a hearing is desired, it must be requested in the written response.
IT IS, THEREFORE, BY THIS COURT ORDERED that Plaintiff s Complaint against Defendant ECMC is dismissed, without prejudice.
IT IS FURTHER ORDERED that Plaintiff shall show cause in writing by October 7, 2003, why the complaint against Defendant, Sallie May, should not be dismissed for failure to prosecute her claim.
IT IS SO ORDERED.