United States District Court, D. Minnesota
John B. Kern, Plaintiff,
New Flyer of America, Inc., Defendant.
REPORT AND RECOMMENDATION
N. LEUNG UNITED STATES MAGISTRATE JUDGE.
November 29, 2018, Plaintiff filed his Complaint in this
matter. (ECF No. 1). As of March 4, 2019, the record did not
indicate that service of the summons and Complaint on
Defendant had been effected, so this Court issued an Order to
Show Cause directing Plaintiff to “show cause in
writing within 30 days as to why his claims should not
be dismissed against Defendant for non-compliance with
Federal Rule of Civil Procedure 4.” (ECF No. 4).
Plaintiff was also warned that “[f]ailure to comply . .
. may result in dismissal of this action for failure to
prosecute.” (ECF No. 5). As of April 24, 2019,
Plaintiff has failed to respond to the Order to Show Cause.
dismissal for want of prosecution is part of a court's
“inherent power to control its docket.”
Lunsford v. RBC Dain Rauscher, Inc., 590 F.Supp.2d
1153, 1158 (D. Minn. 2008) (citing M.S. v. Wermers,
557 F.2d 170, 175 (8th Cir. 1977)); Link v. Wabash R.R.
Co., 370 U.S. 626, 629 (1962) (“The authority of a
federal trial court to dismiss a plaintiff's action with
prejudice because of his failure to prosecute cannot
seriously be doubted. The power to invoke this sanction is
necessary in order to prevent undue delays in the disposition
of pending cases and to avoid congestion in the calendars of
the District Courts.”). Unless otherwise stated, a
dismissal “operates as an adjudication on the
merits.” Fed.R.Civ.P. 41(b). “Dismissal with
prejudice is an extreme sanction and should be used only in
cases of willful disobedience of a court order or continued
or persistent failure to prosecute a complaint.”
Givens v. A.H. Robins Co., Inc., 751 F.2d 261, 263
(8th Cir. 1984); Smith v. Gold Dust Casino, 526 F.3d
402, 405 (8th Cir. 2008). The Eighth Circuit has stressed the
importance of the sanction's proportionality to the
conduct at issue. Smith, 526 F.3d at 405. “A
district court should weigh its need to advance its burdened
docket against the consequence of irrevocably extinguishing
the litigant's claim and consider whether a less severe
sanction could remedy the effect of the litigant's
transgressions on the court and the resulting prejudice to
the opposing party.” Hunt v. City of
Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000) (quoting
Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d
1256, 1260 (8th Cir. 1997)).
case, Plaintiff has failed to prosecute. Plaintiff failed to
provide any information to the Court that Defendant has been
served, let alone that Defendant has been served within the
time permitted under Fed.R.Civ.P. 4(m). Nor is there any
other indication in the record that Defendant has been
served. Given Plaintiff's failure to comply with Rule
4(m) and failure to comply with the Order to Show Cause, the
Court concludes dismissal for failure to prosecute is
the Court must determine how that dismissal is put into
effect. Hunt, 203 F.3d at 527. The Court concludes,
given Plaintiff's pro se status, that dismissal without
prejudice is appropriate. Dismissal without prejudice
appropriately balances this Court's need for efficient
and effective docket control with Plaintiffs' access to
justice. Id.; see Nat'l Hockey
League v. Metro. Hockey Club, Inc., 427 U.S. 639,
643 (1976) (noting purpose of imposing sanctions is to deter
future offensive conduct by the responsible individual and
others). Plaintiff is warned that given the Court's
recommendation in this matter, dismissals of future cases
filed by Plaintiff may well justify dismissal with prejudice.
based on the foregoing, and all the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED
that Plaintiff's Complaint, (ECF No. 1), be
DISMISSED WITHOUT PREJUDICE.
Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to
the Eighth Circuit Court of Appeals.
Local Rule 72.2(b)(1), “a party may file and serve
specific written objections to a magistrate judge's
proposed finding and recommendations within 14 days after
being served a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after
being served a copy of the objections. LR 72.2(b)(2). ...