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Boswell v. DeMouy, 19-0181-WS-MU. (2020)

Court: District Court, S.D. Alabama Number: infdco20200305906 Visitors: 7
Filed: Feb. 05, 2020
Latest Update: Feb. 05, 2020
Summary: REPORT AND RECOMMENDATION P. BRADLEY MURRAY , Magistrate Judge . On March 13, 2019, Plaintiff Gary Boswell, as Personal Representative of the Estate of Richard Boswell, deceased, who was initially represented by counsel but is now proceeding pro se, filed a complaint against Defendants in the Circuit Court of Mobile County, Alabama. (Doc. 1-1). On April 8, 2019, Defendants removed the action to this Court. (Doc. 1). As set forth below, because Plaintiff has failed to comply with the Cour
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REPORT AND RECOMMENDATION

On March 13, 2019, Plaintiff Gary Boswell, as Personal Representative of the Estate of Richard Boswell, deceased, who was initially represented by counsel but is now proceeding pro se, filed a complaint against Defendants in the Circuit Court of Mobile County, Alabama. (Doc. 1-1). On April 8, 2019, Defendants removed the action to this Court. (Doc. 1). As set forth below, because Plaintiff has failed to comply with the Court's Orders dated May 23, 2019 (Doc. 14) and July 23, 2019 (Doc. 15) and thus failed to prosecute, and by failing to notify the Court of his current address, the undersigned Magistrate Judge RECOMMENDS that this action be DISMISSED, without prejudice.

On May 23, 2019, the Court ordered Plaintiff to notify the Court in writing whether he objected to his counsel withdrawing from representing him in this action and further ordered him to advise the Court of his attempts to retain substitute counsel. (Doc. 14). Plaintiff never responded to this order. On July 23, 2019, the Court granted Plaintiff's former counsels' motion to withdraw and ordered Plaintiff to file a statement notifying the Court on or before August 21, 2019 whether he intended to proceed with this case. (Doc. 15). In that order, the Court advised Plaintiff that failure to comply with the order on or before that date would be treated as an abandonment of the case and would result in the dismissal of his action, without prejudice. (Id.). Plaintiff has filed no response to that order.

Because of Plaintiff's failure to comply with the Court's May 23, 2019 and July 23, 2019 orders and his failure to prosecute this action, upon consideration of the alternatives that are available to the Court, the undersigned Magistrate Judge RECOMMENDS that this action be DISMISSED, without prejudice, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure as no other lesser sanction will suffice. Link v. Wabash R. R., 370 U.S. 626, 630 (1962) (interpreting Rule 41(b) not to restrict the court's inherent authority to dismiss sua sponte an action for lack of prosecution); World Thrust Films, Inc. v. International Family Entertainment, Inc., 41 F.3d 1454, 1456-57 (11th Cir. 1995); Mingo v. Sugar Cane Growers Co-op, 864 F.2d 101, 102 (11th Cir. 1989); Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985); Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983).

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b); S.D. Ala. Gen. LR 72(c). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.

Source:  Leagle

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