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Johnson v. Commercial Recovery Systems, Inc.

United States District Court, Eighth Circuit

July 15, 2013

Jeri Johnson, Plaintiff,
v.
Commercial Recovery Systems, Inc., Defendant,

REPORT AND RECOMMENDATION

LEO I. BRISBOIS, Magistrate Judge.

This matter came before the undersigned United States Magistrate Judge upon the routine supervision of cases and upon an assignment made in accordance with 28 U.S.C. 636(b)(1)(A). Jeri Johnson (Plaintiff) commenced this action on January 4, 2010. (Compl. [Docket No. 1]).

On May 29, 2013, more than 120 days having passed since Plaintiff commenced this action, the Court ordered Plaintiff to provide proof of service on Commercial Recovery Systems, Inc. (Defendant), or to show good cause for an extension of time to do so. (Order [Docket No. 4]). Two days later, on May 31, 2013, Plaintiff filed proof of service on Defendant, showing that Defendant was served on January 16, 2013. (Summons Returned Executed [Docket No. 5]). Consequently, on June 17, 2013, because more than twenty-one (21) days had passed since Defendant was served, and yet Defendant had not filed either an answer or a responsive motion as required by Rule 12, the Court ordered Plaintiff as follows:

Accordingly, counsel for Plaintiff is hereby ordered to:

1. Notify Defendant Commercial Recovery Systems, Inc., that it is required to serve and file a responsive pleading or move for an extension of time to do so;
2. File an application for entry of default unless the required pleading is filed within ten (10) days;
3. Advise the Court in writing of any good cause to the contrary.
If Plaintiff's counsel fails to comply with this order within twenty (20) days of this date, the Court will recommend that his case be dismissed for lack of prosecution.

(Order [Docket No. 6], at 1-2). It has now been more than twenty (20) days, and Defendant still has not filed an answer or responsive motion; yet Plaintiff has neither filed an application for entry of default against Defendant, nor has she advised the Court of any good cause for such failure.

Consequently, the Court finds that Plaintiff has failed to abide by the terms of the Court's Order of June 17, 2013. [Docket No. 6]. Because the Court forewarned Plaintiff of the potential consequences of her failure to abide by the Court's orders, the Court recommends that this action be dismissed for failure to comply with the Court's Order of June 17, 2013, [Docket No. 6], and for lack of prosecution.

Based on the foregoing and all of the files, records and proceedings herein, IT IS HEREBY RECOMMENDED:

1. That Plaintiff's Complaint [Docket No. 1] be DISMISSED without prejudice, for failure to comply with the Court's Order of June 17, 2013, [Docket No. 6], and for lack of prosecution.

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