United States District Court, D. Minnesota
N. ERICKSEN United States District Judge
case is before the Court on a Report and Recommendation by
the Honorable Hildy Bowbeer, United States Magistrate Judge,
dated December 30, 2016 [Dkt. No. 36]
(“R&R”). Judge Bowbeer recommends that the
case be dismissed with prejudice on Defendants Jen Pfeifer
and Daniel A. McIntosh's motion pursuant to Federal Rule
of Civil Procedure 41(b) for failure to prosecute [Dkt. No.
27]. See Defs.' Br. 13-15, Dkt. No. 29. In the
alternative, the magistrate judge recommends that
Defendants' motion for summary judgment be granted.
Plaintiff did not object to the R&R, and the deadline for
filing objections was two weeks ago. The Court has
nonetheless conducted a de novo review of the
record. See D. Minn. LR 72.2(b). Based on that
review, the Court partially adopts the reasoning and
conclusions of the R&R as stated below.
Court agrees that dismissal with prejudice pursuant to Rule
41(b) is merited and ADOPTS the portion of the R&R
addressing that question (Sections I and III.A). The
magistrate judge's conclusion that dismissal with
prejudice is appropriate on the facts of this case is further
strengthened by the fact that Plaintiff, who did not oppose
Defendants' motion for dismissal with prejudice or for
summary judgment, also did not object to the magistrate
judge's recommendation to grant that motion. Under other
circumstances, a suspicion that Plaintiff's abstention in
this case may relate in part to recent mail delivery
problems, see Dkt. Nos. 34, 35, & 38, might give
the Court pause. Here, however, Plaintiff's failure to
pursue his own case began much earlier. As the magistrate
judge noted, Plaintiff has not filed anything since June
2015-a year and a half ago. In December 2015, the magistrate
judge issued an Order to Show Cause because Plaintiff had
failed to comply with a September 17, 2015 order. Dkt. No.
23. The docket shows no response by Plaintiff to the Order to
Show Cause, although around that time, Plaintiff apparently
contacted Defendants' counsel with a settlement offer.
See R&R at 3. In addition, at that time, the
magistrate judge cautioned Plaintiff that it was his
responsibility to update his address with the Clerk of Court.
Dkt. No. 23, at 3. In March 2016, before any actual mail
delivery issues arose, the Court again directed Plaintiff to
update his address as necessary. See Dkt. No. 26.
This lengthy history of a demonstrated lack of diligence by
Plaintiff on his own behalf in pursuing his case merits its
dismissal with prejudice. The case law cited in the R&R
and the facts of this case amply support this conclusion.
Court has also considered alternatives to dismissing with
prejudice. See Arnold v. ADT Sec. Servs., Inc., 627
F.3d 716, 722 (8th Cir. 2010). Assuming that the Court were
to adopt the magistrate judge's alternative
recommendation, judgment would be entered against Plaintiff
and the action would be terminated anyway. Because the
alternative choice appears equally fatal to Plaintiff's
claims, the Court is satisfied that dismissal with prejudice
is appropriate in this regard as well. See Hunt v. City
of Minneapolis, 203 F.3d 524, 528-29 (8th Cir. 2000).
Court does not reach the alternative recommendation and
therefore does not adopt that portion of the R&R
(Sections III.B - III.D).
Defendants' motion requested an award of costs and
disbursements, although their brief made no mention of it.
Dkt. No. 27. Defendants are presumptively entitled to an
award of their costs under Federal Rule of Civil Procedure
54(d)(1) as prevailing parties in this action “[u]nless
. . . a court order provides otherwise . . . .” Cf.
Schwarz v. Folloder, 767 F.2d 125, 130-31 (5th Cir.
1985) (finding that a defendant was a prevailing party where
claims were dismissed voluntarily with prejudice).
“[T]he decision whether to award costs ultimately lies
within the sound discretion of the district court.”
Lochridge v. Lindsey Mgmt. Co., Inc., 824 F.3d 780,
783 (8th Cir. 2016) (quoting Marx v. Gen. Revenue
Corp., 133 S.Ct. 1166, 1172 (2013)). Under the
circumstances of this case, including the fact that the
action is already subject to the “extreme
sanction” of being involuntarily dismissed and that
Plaintiff was granted in forma pauperis status
(although this fact by itself does not insulate him from a
costs award against him), the Court in its discretion
declines to award costs. Hunt, 203 F.3d at 527;
cf. Greaser v. Missouri Dep't of Corr., 145 F.3d
979, 985 (8th Cir. 1998). In so doing, the Court declines to
accept the recommendation of the magistrate judge on this
on the files, records, and proceedings herein, and for the
reasons stated above, IT IS ORDERED THAT:
Defendants Jen Pfeifer and Daniel A. McIntosh's Motion
for Summary Judgment [Dkt. No. 27] is GRANTED IN PART AND
DENIED IN PART in that this action is DISMISSED WITH
PREJUDICE, but ...