United States District Court, M.D. Tennessee, Nashville
REPORT AND RECOMMENDATION
BROWN UNITED STATES MAGISTRATE JUDGE.
reasons stated below the Magistrate Judge recommends that
this case be dismissed without prejudice for failure to
prosecute and to obey Court orders.
Plaintiff in this matter, with the assistance of an attorney,
filed her complaint in this matter on March 16, 2017, in
state court and the Defendant removed the case to federal
court (Docket Entry 1). The complaint in the matter, which
was filed on August 22, 2016, in state court (Docket Entry
1-1, pp. 4-11)alleged that on August 22, 2015, the Plaintiff
slipped on the Defendant's premises and injured herself
due to the Defendant's negligence. A scheduling order was
entered by Judge Trauger (Docket Entry 8) on May 30, 2017.
scheduling order provided that all fact discovery would be
completed by the close of business on February 1, 2018. The
Plaintiff was required to identify her expert witnesses and
provide the Defendant the information required under Rule
26(a)(2)(B) by February 15, 2018. The case was set for trial
on June 12, 2018, before Judge Trauger (Docket Entry 9).
next activity in the case was a motion to withdraw by the
Plaintiff's counsel on November 15, 2017 (Docket Entry
10). Judge Trauger held this motion in abeyance until
Plaintiff's counsel complied with Local Rule 83.01(g)
(Docket Entry 11). Subsequently, after Plaintiff's
counsel complied with that rule (Docket Entry 12), Judge
Trauger granted the motion to withdraw (Docket Entry 13). In
her order she allowed the Plaintiff to be given 60 days to
obtain new counsel. Her order was entered on November 27,
on February 14, 2018, the Defendant filed a motion to compel
(Docket Entry 14) the Plaintiff to answer the Defendant's
first set of interrogatories and requests for production of
documents, or in the alternative, for the court to dismiss
the action for failure to prosecute pursuant to Rule 41(b) of
the Federal Rules of Civil Procedure. In their motion they
state that they propounded the interrogatories and requests
for production to the Plaintiff on October 2, 2017, and as of
the date of their motion on February 14, 2018, they had
received no response. In their memorandum they note that even
though more than 90 days had passed from their request to the
filing of the motion they had abstained from seeking response
in order to allow the Plaintiff to find new counsel or to
decide to proceed pro se.
also notes in their memorandum (Docket Entry 15 at pp. ID 93
and 94) they attempted to confer with the Plaintiff by letter
to obtain responses to the outstanding discovery requests and
that the Plaintiff had failed to respond to the
Defendant's letter or otherwise provided any response to
the outstanding discovery requests. They note that the
Plaintiff had not requested additional time from either the
Court or the Defendant and that she had not provided the
Court or counsel with any notice of a change of address.
Judge Trauger transferred the case to Judge Campbell on
February 15, 2018, and the matter was referred to the
undersigned for case management (Docket Entry 17).
reviewing the file, the undersigned entered an order on
February 22, 2018, noting that the parties had not provided
the Court with a joint mediation report on December 1, 2017,
as required by the scheduling order and the Plaintiff was
allowed 60 days to secure counsel or she would be deemed as
proceeding pro se. The order also noted that the
United States Postal Service tracking forms showed that the
letter to the Plaintiff's address could not be delivered.
The Clerk was directed to send a copy of the Court's
order to the Plaintiff's former attorney and he was
requested to notify the Court if he an address or telephone
number for the Plaintiff and, if so, to promptly provide it
to the Court.
Plaintiff was specifically directed to respond to the
Defendant's motion to compel discovery within 14 days of
the entry of the order and was cautioned that failure to
respond or take some action on their case could result in it
being dismissed with or without prejudice for failure to
prosecute and to obey Court orders.
Defendant has now filed a formal motion to dismiss for lack
of prosecution, supported by a memorandum of law (Docket
Entries 19 and 20). The Court has received information from
the Plaintiff's former counsel (Docket Entry 19) where it
appears he does not have any other address other than what is
on the docket sheet.