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Tulowetzke v. Colvin

United States District Court, D. Minnesota

February 24, 2015

CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.


JANIE S. MAYERON, Magistrate Judge.

The above matter came before the undersigned on Defendant's Motion to Dismiss for Lack of Prosecution. [Docket No. 11]. Plaintiff is pro se. Pamela Marentette, Esq. represents the Commissioner. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to U.S.C. § 636(b)(1)(A), (B), Local Rule 72.1(c).

For the reasons discussed below, it is recommended that Defendant's Motion to Dismiss for Lack of Prosecution [Docket No. 11] be granted and this matter be dismissed with prejudice.


Plaintiff Luverne Tulowetzke commenced this action on March 13, 2014, through the filing of Complaint against the Commissioner. [Docket No. 1]. Tulowetzke's Complaint sought judicial review of the Commissioner's decision denying his application for Social Security disability benefits. Id . Tulowetzke applied for in forma pauperis status, which this Court granted on March 14, 2014. [Docket Nos. 2, 3]. The Clerk of Court issued a summons as to the Commissioner on April 24, 2014, which was returned executed on May 19, 2014. [Docket Nos. 5, 7].

The Commissioner filed her Answer and the certified administrative record on June 27, 2014. [Docket No. 8]. Pursuant to D. Minn. L.R. 7.2(b)(1), Tulowetzke's summary judgment motion was due sixty days later, on August 26, 2014. Tulowetzke did not file his motion.

On September 4, 2014, the Commissioner's attorney wrote to Tulowetzke, asking him to either file a motion to extend the time for filing his summary judgment motion or to serve the motion, and apprising him that if he failed to do so within ten days, the Commissioner would seek dismissal pursuant to Fed.R.Civ.P. 41(b). Declaration of Ana H. Voss ("Voss Decl."), ¶ 5; Ex. A (letter to Tulowetzke from attorney Anne Bildtsen dated September 4, 2014). [Docket Nos. 13, 13-1]. Tulowetzke did not file his motion for summary judgment or move for an extension of time. Consequently, on September 17, 2014, the Commissioner sought dismissal with prejudice for lack of prosecution and failure to comply with the local rules governing Social Security matters. Defendant's Motion to Dismiss [Docket No. 11]; Defendant's Memorandum of Law in Support of Motion to Dismiss ("Def.'s Mem.") [Docket No. 12]; Voss Decl.

The Commissioner contended that dismissal was appropriate under Fed.R.Civ.P. 41(b) because Tulowetzke did not diligently pursue his case. Def.'s Mem., p. 2 Specifically, the Commissioner pointed to Tulowetzke's failure to file his summary judgment motion, notwithstanding a courtesy reminder and deadline extensions by the Commissioner, as sufficient to warrant dismissal. Id., pp. 1-2.

Subsequent to the Commissioner's Motion to Dismiss, the Court issued an Order on September 18, 2014, requiring Tulowetzke to serve and file his response to the motion on or before October 9, 2014. Order, ¶1. [Docket No. 15]. By letter dated October 14, 2014, directed to the Clerk of Court, Tulowetzke stated: "I am at a disadvantage and the court system is very aware of! I am unable to attain legal representation to pursue my attentions, therefore, I have no alternative, but, to back-out at this time." [Docket No. 16].[1]


Federal Rule of Civil Procedure 41(b) states, in relevant part:

If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision... operates as an adjudication on the merits.

The court has the authority to dismiss a case with prejudice where plaintiff fails to prosecute his case. Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962). A plaintiff's failure to prosecute is sufficient to warrant such a dismissal where there is evidence the plaintiff acted "intentionally[, ] as opposed to accidentally or involuntarily." See Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 722 (8th Cir. 2010) (citing Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000)). A Rule 41(b) dismissal is the proper remedy where the plaintiff has exhibited "a pattern of intentional delay." Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984) (citing Garrison v. International Paper Co., 714 F.2d 757, 760 (8th Cir. 1971)). A plaintiff need not have acted in "bad faith" in failing to prosecute his or her case. Arnold, 627 F.3d at 722.

Dismissal with prejudice has been described as an "extreme sanction." Hunt, 203 F.3d at 527. However, this remedy is proper when a court has "weigh[ed] its need to advance its burdened docket against the consequence of irrevocably extinguishing the litigant's claim." Id . (citing Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1260 (8th Cir. 1997)). It is advised that, before resorting to a dismissal with prejudice, courts should consider the effect of a less severe sanction on the delaying party. See Smith v. Gold Dust Casino, 526 F.3d 402, 406 (8th Cir. 2008). Though advising a delaying party of the detrimental effect of its conduct is encouraged, "this ...

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