Opinion
Civil Action 1:21-cv-03428-SKC
03-16-2023
KAYLA JENNINGS, Plaintiff, v. MARTIN J. WALSH, Defendant.
RECOMMENDATION
S. KATO CREWS U.S. MAGISTRATE JUDGE
This case was filed on December 22, 2021. [Dkt. 1.] On April 8, 2022, Plaintiff filed a Notice the service on Defendant was completed. [Dkt. 4.] On May 10, 2022, Defendant filed a Motion to Dismiss [Dkt. 6], but Plaintiff failed to respond. To be sure, Plaintiff has not communicated with the Court since filing her notice in April 2022. On July 1, 2022, the undersigned judicial officer issued an Order to Show Cause, returnable on July 29, 2022, why he should not recommend this case be dismissed for failure to prosecute. [Dkt. 8.] Plaintiff has again filed nothing.
DISCUSSION
Although Plaintiff is proceeding without an attorney, she nonetheless bears the responsibility of prosecuting her case with diligence. While a Court must liberally construe pro se filings, a litigant's pro se status does not relieve her of her obligation to comply with the rules of civil procedure and the Local Rules of Practice. Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992); see also Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
The Federal Rules of Civil Procedure give the district court ample tools to deal with a recalcitrant litigant. See Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993). Rule 41(b) allows a defendant to move for dismissal of an action if the plaintiff fails to prosecute or to comply with a court order. See id.; see also Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007). Although the language of Rule 41(b) contemplates a defendant filing a motion to dismiss, this Rule has long been interpreted to permit courts to dismiss actions sua sponte for a plaintiff's failure to prosecute or comply with procedural rules or court orders. Link v. Wabash R.R. Co., 370 U.S. 626, 630-33 (1962).
Plaintiff has not contacted the Court formally or informally since April 8, 2022. The Motion to Dismiss is nearly ten months old and Plaintiff has taken no action regarding this motion or the Order to Show Cause despite a warning from the Court regarding her failure to participate. Consequently, it appears Plaintiff has abandoned her case.
For the foregoing reasons, and based on the entire record herein, and pursuant to Fed.R.Civ.P. 41(b), the Court RECOMMENDS this case be dismissed without prejudice for Plaintiff's failure to prosecute this action.The Court further recommends finding as MOOT Defendant's Motion to Dismiss. [Dkt. 6.]
Be advised the parties have 14 days after service of this recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within 14 days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
IT IS ORDERED this case shall be drawn to a presiding district court judge.