United States District Court, D. Maine
RECOMMENDED DECISION ON MOTION TO DISMISS
C. NIVISON U.S. Magistrate Judge.
action, Plaintiff seeks to recover for damages she allegedly
sustained as the result of dangerous trees on property she
leased from Defendant. The matter is before the Court on
Defendant's motion to dismiss. Through the motion,
Defendant asks the Court to dismiss Plaintiff's complaint
because Plaintiff has failed to keep the Court and Defendant
apprised of her current address and to meet certain deadlines
established in the scheduling order. (ECF No. No. 34.)
review of Defendant's motion and the record, I recommend
the Court grant Defendant's motion to dismiss.
January 26, 2016, after consideration of Defendant's
first motion to dismiss, I recommended the Court grant in
part the motion. If the Court were to adopt the
recommendation, unless Plaintiff amended her complaint to
state other plausible claims, the claim regarding alleged
dangerous trees on Defendant's property would be the sole
claim on which Plaintiff would be permitted to proceed. (ECF
No. 17.) The Court subsequently affirmed the recommended
decision. (ECF No. 24.)
February 11, 2016, Plaintiff requested an extension of the
time to file an amended complaint in accordance with the
recommended decision. (ECF No. 20.) The Court granted
Plaintiff's request. (ECF No. 22.)
however, did not file an amended pleading. Defendant then
moved to dismiss Plaintiff's complaint as a sanction for
Plaintiff's failure to file an amended complaint in
accordance with the Court's order granting her additional
time to file an amended complaint. Although Plaintiff did not
respond to the motion to dismiss, the Court denied the motion
as Plaintiff was not required to file an amended complaint.
(ECF Nos. 29, 31.)
February motion to extend time was Plaintiff's most
recent contact with the Court. Subsequently, all mail sent to
Plaintiff by the Court has been returned as undeliverable.
The returned mail includes the order granting Plaintiff
additional time to amend, the order addressing
Defendant's first motion to dismiss, the recommended
decision on Defendant's motion for sanctions, the order
adopting the recommended decision on the motion for
sanctions, and the scheduling order. (ECF Nos. 23, 25, 30,
the past six months, Plaintiff has not contacted the Court to
provide her current address and contact information. During
this time, the deadlines set in the Court's scheduling
order for the parties' initial conference and initial
disclosures have expired. Defendant is unaware of
Plaintiff's location and thus has no means to communicate
Rule of Civil Procedure 41(b) authorizes a defendant to file
a motion for dismissal when the plaintiff fails to prosecute
the action or fails to comply with the rules or a court
order. Here, Plaintiff has failed to comply with with the
Court's scheduling order, and otherwise failed to
prosecute this action.
to litigation have a duty to inquire periodically regarding
the status of the litigation and to keep the court informed
of their current address and contact information. United
States v. Guerrero, 302 Fed.App'x 769, 771 (10th
Cir. 2008); Lewis v. Hardy, 248 Fed.App'x 589,
593 (5th Cir. 2007) (per curiam); Carvel v. Durst,
No. 1:09-cv-06733, 2014 WL 787829, at *1 n.5 (S.D.N.Y. Feb.
25, 2014); Am. Arbitration Ass'n, Inc. v.
Defonseca, No. 1:93-cv-02424, 1997 WL 102495, at *2
(S.D.N.Y. Mar. 6, 1997) (“[A] litigant's obligation
to promptly inform the Court and the opposing party of an
address change is a matter of common sense, not legal
sophistication.”); see also Information for
Pro Se Parties, Responsibilities of the Pro Se Litigant
¶ 6: “You must keep the Court and the other party
advised of any change of your address or telephone number.
… Failing to do so may result in the imposition of
sanctions, which could include the dismissal of your
case.” (United States District Court, District of Maine
handout for pro se litigants, also available online).
Plaintiff is evidently aware of her obligation to remain in
contact with the Court because she has on one prior occasion
called the Clerk to inform the Court of a change of address.
(ECF No. 6.)
has not contacted the Court or Defendant for more than six
months. During that time, important discovery-related
deadlines have expired. Significantly, without current
contact information for Plaintiff, Defendant cannot conduct
any meaningful discovery. In addition, the Court cannot
schedule any proceedings with a realistic expectation that
Plaintiff will participate. Under the circumstances, to
subject Defendant to the uncertainty of continuing litigation
and the expense of further motion practice would be unfair.
This case illustrates the reason Rule 41(b) exits. That is,
“[i]n order to operate effectively and administer
justice properly, courts must have the leeway ‘to
establish orderly processes and manage their own
affairs.'” Vazquez-Rijos v. Anhang, 654
F.3d 122, 127 (1st Cir. 2011) (quoting Young v.
Gordon, 330 F.3d 76, 81 (1st Cir. 2003)). In short,
dismissal is warranted in this case.
dismissal is appropriate, the issue is whether the dismissal
should be with prejudice. Unless the court directs otherwise,
an order granting a motion to dismiss for failure to
prosecute “operates as an adjudication on the
merits.” Fed.R.Civ.P. 41(b). As a general
rule, however, dismissal of an action with prejudice is a
sanction reserved for the most extreme misconduct.
Vazquez-Rijos, 654 F.3d at 127. Because Plaintiff
has in the past demonstrated an interest in prosecuting the
action, and because Plaintiff's failure to communicate
with the Court could be a product ...