Opinion
CV-20-00135-TUC-DCB (DTF)
06-02-2021
Joseph Lowrey, Plaintiff, v. Poly Print Incorporated, et al., Defendants.
ORDER
HONORABLE DAVID C. BURY, UNITED STATES DISTRICT JUDGE
On August 19, 2020, the Court stayed the counterclaim, pending Plaintiff's bankruptcy but did not stay the Complaint filed by the Plaintiff against the Defendants.The Court ordered the Plaintiff to file status reports regarding the bankruptcy every 6 months. There have been no status reports filed.
Plaintiff sues Defendant under the Family Medical Leave Act and for state law violations of whistleblowing and wrongful termination statutes and wage laws. Defendants counterclaim a breach of the employment contract under Arizona law, alleging Plaintiff's termination within 24 months of his employment requires him to repay a housing allowance, and relocation and recruitment fees.
The Scheduling Order (Doc. 20) issued in this case on June 2, 2020, setting a discovery deadline of April 2, 2021; dispositive motions due date of May 7, 2021, with the Pretrial Order due on June 4, 2020. No. dispositive motions have been filed in the case and, therefore, the Court withdraws the reference from the Magistrate Judge and returns the case here for trial.
The Court finds that the Complaint is subject to dismissal for lack of prosecution, pursuant to LRCiv. 41.1 for lack of prosecution. No. pleadings, notices or other documents have been filed by the Plaintiff in this case for six or more months, including Plaintiffs failure to comply with this Court's order to file a status report regarding the stay of the counterclaim pending Plaintiffs bankruptcy.
In the event the Court dismisses the Complaint, the counterclaim which is currently stayed may survive the dismissal. Fed.R.Civ.P. 13(i). A district court “may decline to exercise supplemental jurisdiction” if it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).2
Accordingly,
IT IS ORDERED withdrawing the referral to Magistrate Judge Ferraro.
IT IS FURTHER ORDERED that within seven days of the filing date of this Order, the Plaintiff shall show cause in writing why the Complaint should not be dismissed for lack of prosecution, including an explanation why he has failed to comply with the Court's directive to file 6-month status reports regarding his bankruptcy.
IT IS FURTHER ORDERED that Plaintiffs failure to show good cause shall result in the dismissal of his Complaint.