Opinion
CV 20-00014-H-DLC-JTJ
10-29-2020
BRANDON MARQUARDT, Plaintiff, v. JESSICA CONELL and ROEY PFISTER, Defendants.
FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Mail sent to Plaintiff Brandon Marquardt at 2801 South Montana Street, Butte, MT 59701 (the address provided by Mr. Marquardt on June 3, 2020) was returned on August 14, 2020 as undeliverable. (Doc. 14.) In addition, the Department of Corrections website indicates that Mr. Marquardt is no longer incarcerated with the Department of Corrections.
The Local Rules for the District of Montana provide:
(a) Address Changes. An attorney or a self-represented party whose e-mail, post office box or physical mailing address changes while an action is pending must promptly file with the court and serve upon all other parties a Notice of Change of Address specifying the new address for service. E-mail addresses for attorneys and their staff must be maintained as provided in the Guide for Filing in the District of Montana.
(b) Dismissal Due to Failure to Notify. The court may dismiss a complaint without prejudice or strike an answer when:
(1) a document directed to the attorney or self-represented party by the court has been returned to the court as not deliverable; and
L.R. 5.3. Mr. Marquardt was notified in the Court's February 27, 2020 Notice of Case Opening (Doc. 3), the Order dated April 15, 2020 (Doc. 4), and the June 11, 2020 Scheduling Order (Doc. 10) that he must immediately inform the Clerk of Court of any change in his address and a failure to do so could result in dismissal of his case.(2) the court fails to receive within 60 days of this return a written communication from the attorney or self-represented party indicating a current address for service.
It has been more than 60 days since the return of written communication from the Court addressed to the only address which the Court has for Mr. Marquardt and Mr. Marquardt has not filed a notice of change of address.
ACCORDINGLY, IT IS HEREBY RECOMMENDED that this action should be DISMISSED WITHOUT PREJUDICE for failure to comply with Local Rule 5.3.
The Clerk of Court is directed to serve a copy of these recommendations upon Mr. Marquardt at Montana State Prison and at 2801 South Montana Street, Butte, MT 59701.
NOTICE OF RIGHT TO OBJECT TO FINDINGS AND
RECOMMENDATIONS AND CONSEQUENCES OF FAILURE TO OBJECT
The parties may file objections to these Findings and Recommendations within fourteen (14) days after service (mailing) thereof. 28 U.S.C. § 636. Failure to timely file written objections may bar a de novo determination by the district judge and/or waive the right to appeal.
Rule 6(d) of the Federal Rules of Civil Procedure provides that "[w]hen a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail) . . . 3 days are added after the period would otherwise expire under Rule 6(a)." Therefore, since Mr. Marquardt is being served by mail, he is entitled an additional three (3) days after the period would otherwise expire. --------
This order is not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed.R.App.P. 4(a), should not be filed until entry of the District Court's final judgment.
DATED this 29th day of October, 2020.
/s/_________
John Johnston
United States Magistrate Judge