Filed: Mar. 23, 2018
Latest Update: Mar. 23, 2018
Summary: ORDER JAMES A. TEILBORG , Senior District Judge . Pending before the Court is the Report and Recommendation (R&R) of the Magistrate Judge 1 recommending that the Motion to Vacate, Set Aside, or Correct sentence be dismissed for failure to prosecute. (Doc. 17). Although there are many examples of Movant failing to respond to Court orders and failing to comply with Court orders ( see Doc. 19 at 1-3), the particular failure that lead to the currently pending R&R was Movant's failure to retur
Summary: ORDER JAMES A. TEILBORG , Senior District Judge . Pending before the Court is the Report and Recommendation (R&R) of the Magistrate Judge 1 recommending that the Motion to Vacate, Set Aside, or Correct sentence be dismissed for failure to prosecute. (Doc. 17). Although there are many examples of Movant failing to respond to Court orders and failing to comply with Court orders ( see Doc. 19 at 1-3), the particular failure that lead to the currently pending R&R was Movant's failure to return..
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ORDER
JAMES A. TEILBORG, Senior District Judge.
Pending before the Court is the Report and Recommendation (R&R) of the Magistrate Judge1 recommending that the Motion to Vacate, Set Aside, or Correct sentence be dismissed for failure to prosecute. (Doc. 17). Although there are many examples of Movant failing to respond to Court orders and failing to comply with Court orders (see Doc. 19 at 1-3), the particular failure that lead to the currently pending R&R was Movant's failure to return a supplemental waiver. (See Doc. 17). With his objections to the R&R, Movant has now returned the supplemental waiver. (Doc. 18).
In his objections, Movant gives various excuses for why he has not timely complied with the orders of the Magistrate Judge in this case. (Doc. 18). Basically, Movant failed to comply at various times because he was seeking legal counsel. (See Doc. 18). While this might have been a basis to seek an extension of time, it is not a basis to ignore the orders of the Magistrate Judge completely, which appears to be what Movant chose to do.
Nonetheless, Movant has now returned the signed supplemental waiver. Thus, the Magistrate Judge's analysis of the "prejudice to the defendant" prong of the factors to consider when dismissing for failure to prosecute has significantly changed. (See Doc. 17 at 3). As a result, while the Court agrees with the R&R that factors 1 and 2 favor dismissal, at this point factors 3 and 4 do not. (See id.). Further, as to factor 5, because Movant has now complied with the Magistrate Judge's order, lesser sanctions might be available. (See id.).
Thus, the Court will reject the R&R. This result is without prejudice to the Government seeking a lesser sanction than dismissal upon re-referral to the Magistrate Judge for Movant's repeated violations of Court orders. Further, this is without prejudice to the Magistrate Judge again recommending that this case be dismissed for failure to prosecute if Movant continues his pattern of not complying with orders or not taking the necessary actions to allow this case to proceed. To be clear, it is Movant's duty to prosecute this case. Further, Movant's pro se status is not a basis to fail to comply with Court orders. Thus, if Movant fails to comply with a Court order again, such failure will be further evidence that no sanction but dismissal is realistic in this case.
Based on the foregoing,
IT IS ORDERED that the R&R (Doc. 17) is rejected. Respondent's motion to dismiss (Doc. 16) is denied.
IT IS FURTHER ORDERED that this matter is re-referred to Magistrate Judge Eileen S. Willett pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a further report and recommendation.
