United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
E. RAU, United States Magistrate Judge
matter is before the undersigned sua sponte on
Plaintiff Michael Abel's (“Abel”) failure to
abide by this Court's Order instructing him to provide
updated service forms. See (Order Dated Feb. 12,
2018, “Feb. 2018 Order”) [Doc. No. 36]. This
matter was referred for the resolution of pretrial matters
pursuant to 28 U.S.C. § 636(b)(1)(A) and District of
Minnesota Local Rule 72.1. For the reasons stated below, this
Court recommends that Abel's case be dismissed for
failure to prosecute.
custody in the state of Vermont-alleges that Defendant
Stephani Dayton (“Dayton”) tampered with or
otherwise interfered with Abel's use of his social media
accounts. See (Am. Compl.) [Doc. No. 14 at 1]. Abel
asserts damages of $300, 000 stemming from Dayton's
“acts of Conversion and Private Nuisance.”
See (id. at 2-3). Abel's application to
proceed in forma pauperis was granted. See
(Order Dated June 28, 2017) [Doc. No. 15]. Pursuant to its
obligations under 28 U.S.C. § 1915(d), the Court issued
a summons to Dayton on July 21, 2017. See (Summons
in a Civil Action) [Doc. No. 23]. The address provided by
Abel was that of a leasing office and not to Dayton
specifically because Abel asserted that he “ha[s] sent
mail to the listed address in the past and the [leasing
office] delivered the mail to the Defendant.”
See (Process Receipt & Return) [Doc. No. 25].
Service of process failed because the leasing office would
not release Dayton's information or otherwise forward the
summons to her. See (id.). The Court
attempted service of process two more times at the location
provided, ultimately requesting that the U.S. Marshals
Service deliver the summons and complaint. See
(Order Dated Sept. 19, 2017) [Doc. No. 30]; (Order Dated Dec.
4, 2017) [Doc. No. 33]. It became clear during these various
service attempts that Dayton cannot be reached at the address
provided. See (Process Receipt & Return) [Doc.
No. 35] (property manager of the leasing office representing
that Dayton can no longer be reached at this address).
Specifically, contrary to what was implied by Abel's
attempts at service, Dayton did not appear to live at the
apartment complex associated with the leasing office, but
merely worked there. See (id.) (stating
“Dayton no longer works at 3925-[n]ew owners have taken
over the property”).
light of the issues outlined above effectuating service of
process, this Court entered the following order:
Abel must submit new service forms to the Court on or before
March 31, 2018, updating Dayton's address. Absent a
showing of good cause, the Court will not entertain
additional motions on service. If Abel is unable to provide a
new address for Dayton on or before March 31, 2018-so the
Court may meet its service obligations under 28 U.S.C. §
1915(d)-the Court will recommend that this case be dismissed
without prejudice for failure to prosecute. Furthermore, if
the new address Abel provides does not effectuate proper
service of process on Dayton under the Federal Rules of Civil
Procedure, this Court will also recommend that Abel's
case be dismissed without prejudice for failure to prosecute.
See Bennett v. Dr. Pepper/Seven Up, Inc., 295 F.3d
805, 808 (8th Cir. 2002) (stating a litigant's pro se
status does not entitle him or her to disregard the Federal
Rules of Civil Procedure); Ackra Direct Mktg. Corp. v.
Fingerhut Corp., 86 F.3d 852, 856 (8th Cir. 1996)
(Feb. 2018 Order at 2-3) (footnote omitted). The Court also
stated that “[p]ursuant to the Federal Rules of Civil
Procedure, Abel may also elect to voluntarily dismiss his
case. See Fed. R. Civ. P. 41(a).”
(Id. at 3 n.1).
the Court's specific instructions, Abel has not
communicated with the Court in any way, let alone provided
the service forms as ordered.
district court may sua sponte dismiss an action
under Rule 41(b) for the plaintiff's deliberate failure
to comply with a court order.” Holly v.
Anderson, 467 F.3d 1120, 1121 (8th Cir. 2006). Federal
Rule of Civil Procedure 41(b) allows a court to dismiss an
action “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order . . . .”
Fed.R.Civ.P. 41(b). “[W]hat constitutes a failure to
prosecute is not fixed by settled rules, but depends on the
particular facts and circumstances in a case.”
Navarro v. Chief of Police, Des Moines, Iowa, 523
F.2d 214, 217 (8th Cir. 1975) (internal quotation marks
on the circumstances of this case, the Court concludes that
Abel's failure to abide by this Court's Order and his
lack of communication generally demonstrates a failure to
prosecute. This failure to prosecute warrants dismissal
without prejudice. Importantly, Abel was initially engaged in
this litigation. He filed multiple motions related to the
service issues described above, attempting to move this case
forward. See (Mot. to Compel) [Doc. No. 18]
(requesting the prison at which he is an inmate provide him
with certain documents); (Mot. for Enlargement of Time) [Doc.
No. 19] (seeking additional time to perfect service); (Mot.
for Enlargement of Time) [Doc. No. 28] (seeking additional
time to perfect service after the leasing office declined to
provide the summons to Dayton); (Mot. Requesting Leave From
the Court to Proceed Prior to the 26(f) Conference) [Doc. No.
29] (asking the Court to subpoena the leasing office and
require that it provide Dayton's residential address).
Furthermore, Abel filed a letter with the Court requesting an
update regard his case. See (Letter Dated Aug. 18,
2017) [Doc. No. 26] (asking the Clerk's Office for a
status update because he was “worried about the time
allowed for Service of Complaint”). After the February
2018 Order, however, Abel has not communicated with the Court
and has not provided the service information as ordered. The
Court issued its February 2018 Order over ninety days ago and
Abel has not communicated with the Court in over 180 days. At
bottom, Abel's failure to abide by this Court's Order
and failure generally to communicate with the Court regarding
this case “demonstrates a lack of interest in this case
and an abandonment of his claims.” Cf. In re Baycol
Prod. Litig., MDL No. 1431 (MJD/SRN), 2007 WL 3028272,
at *2 (D. Minn. Oct. 15, 2007) (Nelson, Mag. J., as adopted
by Davis, J.). Consequently, the Court recommends that this
case be dismissed without prejudice for failure to prosecute.