Opinion
1:21-cv-02310-JMS-MKK
02-24-2023
FOLAYAN DARA ZHENG, Plaintiff, v. LLOYD AUSTIN, III, Defendant.
REPORT AND RECOMMENDATION TO DISMISS COMPLAINT WITHOUT PREJUDICE
M. Kendra Klump, United States Magistrate Judge
On January 13, 2023, the Court scheduled an in-person status conference for January 27, 2023. (Dkt. 165). The Pro Se Plaintiff, Folayan Zheng, failed to appear, (Dkt. 170), despite having received notice of the hearing, (see Dkt. 169). The Court then issued an Order directing Plaintiff to appear in person on February 9, 2023, to show cause why she should not be sanctioned for having failed to appear for the January 27, 2023 hearing. (Dkt. 171; see also Dkt. 170 (setting status conference for Feb. 9, 2023)). The Order reminded Plaintiff of the importance of complying with court orders and appearing at all scheduled conferences. (Dkt. 170). The Court expressly warned Plaintiff that "fail[ure] to prosecute or to comply with ... a court order" may result in the dismissal of her claim. (Id. (quoting Fed.R.Civ.P. 41(b)).
Plaintiff failed to appear for the February 9, 2023 show-cause hearing and status conference. (Dkt. 174). The Court issued another Order to Show Cause requiring Plaintiff to appear in person on February 23, 2023, to explain her January 27, 2023, and February 9, 2023, absences. (Dkt. 175; see also Dkt. 174). This Order reiterated the previously-given warning that Plaintiff's failure to prosecute or comply with court orders risked dismissal. (Dkt. 175 (quoting Fed.R.Civ.P. 41(b)).
Plaintiff failed to appear for the February 23, 2023 show cause hearing and status conference. Even absent a motion by defendant, the Court maintains authority to "issue any just orders" against a party that fails to comply with the Court's order. Fed.R.Civ.P. 16(f)(1)(A) & (C). That includes dismissal of the case. Fed.R.Civ.P. 16(f)(1) ("just orders" include "those authorized by Rule 37(b)(2)(A) (ii)-(vii)"); Fed.R.Civ.P. 37(b)(2)(A)(v) ("dismissing the action or proceeding in whole"). Due to Plaintiff's repeated and unexcused failure to comply with the Court's orders, the Magistrate Judge recommends to the District Judge that Plaintiff's Fourth Amended Complaint be DISMISSED WITHOUT PREJUDICE. See GCIU Employer Retirement Fund v. Chicago Tribune Co., 8 F.3d 1195, 1198-99 (7th Cir. 1993) ("[A] party cannot decide for itself when it feels like pressing its action and when it feels like taking a break because trial judges have a responsibility to litigants to keep their court calendars as current as humanly possible.") (quotation marks and citation omitted).
Any objections to the Magistrate Judge's Report and Recommendation must be filed in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). Failure to file objections within fourteen days after service will constitute a waiver of subsequent review absent a showing of good cause for such failure.
So RECOMMENDED.