Opinion
Civil Action 21-353-BAJ-RLB
11-21-2023
TRINITY MILLER, ET AL. v. JAMES LEBLANC, ET AL.
NOTICE
RICHARD L. BOURGEOIS, JR., UNITED STATES MAGISTRATE JUDGE
Please take notice that the attached Magistrate Judge's Report and Recommendations has been filed with the Clerk of the U.S. District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days from the date of receipt of this notice to file written objections to the proposed findings of fact and conclusions of law set forth in the Magistrate Judge's Report. A failure to object will constitute a waiver of your right to attack the factual findings on appeal.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
REPORT AND RECOMMENDATION
The Complaint in this matter was filed on June 18, 2021. (R. Doc. 1). On September 26, 2022, Adam Whitley-Sebti, attorney for Plaintiff Trinity Miller (“Miller”), filed a Motion to Withdraw as Counsel on the basis that “plaintiff has been essentially refusing to communicate with undersigned counsel since March 2022.” (R. Doc. 30). As a result, the Court entered a Notice setting a telephone conference for October 5, 2022 to discuss the pending motion. (R. Doc. 32). On October 5, 2022, the telephone conference was held and counsel confirmed that Attorney Emily Posner was incorrectly reflected on the docket as co-counsel for Miller and the motion to withdraw as counsel was granted leaving Miller to proceed pro se. (R. Doc. 33). The Clerk of Court was directed to update the docket to reflect Miller's contact information as contained in the motion and directed to mail a copy of the Order and Ruling filed at R. Doc. 31 to Miller. Plaintiff Miller did not submit an amended complaint.
Following resolution of the Motion to Dismiss, this matter was referred to the undersigned for entry of an amended scheduling order. (R. Doc. 47). A Scheduling Conference Order was filed setting a telephone scheduling conference for November 9, 2023 with a joint status report due on October 26, 2023. (R. Doc. 48). On October 26, 2023, counsel for Plaintiffs Janice Marcantel and Jimmy Marcantel (“Marcantel Plaintiffs”) filed an Unopposed Motion to Continue Scheduling Conference indicating there would be a change in counsel for the Marcantel Plaintiffs that would conflict with the telephone scheduling conference scheduled. (R. Doc. 52). The Court granted the unopposed motion, cancelled the telephone scheduling conference, and reset a telephone status conference for November 16, 2023. (R. Docs. 53, 54). Notice of the telephone status conference was sent to Plaintiff at her last known address at 4968 Hecker Road, Iowa, LA 70647 on November 1, 2023.
On November 16, 2023, a telephone status conference was held and Miller failed to dial in to the conference as directed. (R. Doc. 59). Counsel for the Marcantel Plaintiffs and counsel for Defendants indicated they had not been in contact with her. A review of the record as well as Miller's failure to dial in to the telephone conference show she has failed to participate in this matter in over 19 months and it appears she does not intend to pursue this matter.
As a practical matter, the case cannot proceed against the defendants if Plaintiff Miller does not prosecute it or respond to the Court's orders regarding disposition of the case. Plaintiff's failure to prosecute effectively deprives the defendants of the opportunity to defend themselves from the allegations made against them.
Local Rule 41(b)(2) provides that: “Prior to issuance of a dismissal, notice shall be sent to the plaintiff, and plaintiff shall be allowed fourteen calendar days from mailing of the notice within which to file evidence of good cause for plaintiff's failure to act. If no response is received within the allotted time, the Court may dismiss the civil action. If a timely response is filed, a District Judge or a Magistrate Judge may order additional time within which to take action, dismiss the civil action without prejudice, or issue any other appropriate order.” The Court finds that Plaintiff should be afforded that same 14 day period to advise the Court if she wishes to proceed with her case. The timeframe to submit objections to this Report and Recommendation will give her that time.
RECOMMENDATION
It is the recommendation of the Magistrate Judge that Plaintiff Trinity Miller be dismissed without prejudice pursuant to Local Rule 41(b) for failure to prosecute and failure to comply with a Court order.