Filed: Jan. 20, 2015
Latest Update: Jan. 20, 2015
Summary: DECISION & ORDER THOMAS J. McAVOY, Senior District Judge. I. INTRODUCTION This action was referred to the Hon. David E. Peebles, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. 636(b) and Local Rule 72.3(c). No objections to Magistrate Judge Peebles's Report and Recommendation [dkt. # 31] have been filed, and the time to do so has expired. 1 II. DISCUSSION Magistrate Judge Peebles indicates in his report: Although this case is in its formative proce
Summary: DECISION & ORDER THOMAS J. McAVOY, Senior District Judge. I. INTRODUCTION This action was referred to the Hon. David E. Peebles, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. 636(b) and Local Rule 72.3(c). No objections to Magistrate Judge Peebles's Report and Recommendation [dkt. # 31] have been filed, and the time to do so has expired. 1 II. DISCUSSION Magistrate Judge Peebles indicates in his report: Although this case is in its formative proced..
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DECISION & ORDER
THOMAS J. McAVOY, Senior District Judge.
I. INTRODUCTION
This action was referred to the Hon. David E. Peebles, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). No objections to Magistrate Judge Peebles's Report and Recommendation [dkt. # 31] have been filed, and the time to do so has expired.1
II. DISCUSSION
Magistrate Judge Peebles indicates in his report:
Although this case is in its formative procedural stages, plaintiffs have already demonstrated an unacceptable lack of cooperation with defendants' counsel in formulating a joint civil case management plan in accordance with this court's directives and Northern District of New York General Order No. 25, and have failed to appear in person as directed by the court on two occasions. Based upon that conduct, I recommend plaintiffs' complaint be dismissed for failure to prosecute pursuant to Rule 41 of the Federal Rules of Civil Procedure.
Rep. Rec. p. 2.
Magistrate Judge Peebles further writes:
Through their actions, plaintiffs have demonstrated a repeated failure to cooperate with both defendants' counsel and the court so that this action can be fairly, efficiently, and timely adjudicated on its merits. Based upon their failure to comply with the court's orders, in particular the order that they appear and show cause why this action should not be dismissed, I conclude that dismissal of plaintiffs' complaint is warranted. Accordingly, it is hereby respectfully
RECOMMENDED that plaintiffs' complaint be sua sponte DISMISSED, with prejudice, based upon their failure to prosecute and to appear as required by court order.
Id. p. 10.
After examining the record, this Court has determined that the Report and Recommendation is not subject to attack for plain error or manifest injustice. However, because copies of the Order to Show Cause, which were served on plaintiffs at their last know address, were returned as undeliverable after the Report and Recommendation was issued, the Court will conclude that plaintiffs abandoned this action, see fn. 1, supra, as opposed to willfully disobeyed a court order. Accordingly, the dismissal will be without prejudice.
III. CONCLUSION
For the reasons stated here and the Report and Recommendation, the Court ADOPTS in substantial part the Report and Recommendation [dkt. # 31]. Plaintiffs' complaint is sua sponte DISMISSED, without prejudice, for failure to prosecute and as abandoned.
IT IS SO ORDERED.
