United States District Court, D. Minnesota
Chester C. Graham, Plaintiff,
Grand Celebration Cruises, L.L.C., a Florida limited liability company, Defendant.
Chester C. Graham, 408 Spring Street North, Apt. #210,
Northfield, MN 55057, pro se Plaintiff.
REPORT AND RECOMMENDATION TO DISMISS FOR LACK OF
R. THORSON, UNITED STATES MAGISTRATE JUDGE.
matter is before this Court for a Report and Recommendation
on whether this case should be dismissed for lack of
prosecution. See 28 U.S.C. § 636(b)(1) and D.
Minn. LR 72.1. For the reasons stated below, this Court
recommends that Plaintiffs' Complaint be dismissed
without prejudice for lack of prosecution.
April 4, 2018, Plaintiff filed a Complaint against Grand
Celebration Cruises, L.L.C. (Doc. No. 1.) A Summons was
issued as to Defendant on August 28, 2018, and again on
October 15, 2018. (Doc. Nos. 6, 9.) After several attempts on
service, the Summons was returned executed on February 1,
2019. (Doc. Nos. 10, 11.) Nothing happened in this case
between February 1 and 27, 2019. On February 27, 2019, this
Court issued an Order directing Plaintiff to:
1. Notify Defendant immediately that it is required to make
an appearance or move for an extension of time to do so;
2. File an application for entry of default against Defendant
unless the required pleading is filed within 10 days;
3. Advise the Court in writing of any good cause to the
(Doc. No. 13.) This Court also stated that “[u]nless
Plaintiff complies with this Order within 20 days of this
date, the Defendant will be dismissed for lack of
March 12, 2019, thirteen days after this Court's Order,
Plaintiff filed letters in this case (dated March 4, 2019),
which seemed to indicate that he notified Defendant pursuant
to the Court's Order. (See Doc. Nos. 14, 15.)
However, as of the date of this Report and Recommendation,
Defendant has not filed an appearance in this case and
Plaintiff has not filed an application for entry of default
within twenty days as was instructed in the Court's
February 27, 2019 Order.
facts and circumstances of each case should be evaluated to
determine if dismissal for failure to prosecute is warranted.
Navarro v. Chief of Police, Des Moines, Iowa, 523
F.2d 214, 217 (8th Cir. 1975). This Court concludes that,
based on the sequence of events in this case and
Plaintiff's lack of compliance with this Court's
February 27, 2019 Order, Plaintiff's case should be
dismissed for failure to prosecute.
Rule of Civil Procedure 41(b) states:
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 (b) and
any dismissal not under this rule-except one for lack of
jurisdiction, improper venue, or ...