PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS

JOE J. VOLPE, Magistrate Judge.

The following recommended disposition has been sent to United States District Judge James M. Moody, Jr. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.

If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before either the District Judge or Magistrate Judge, you must, at the time you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.

2. Why the evidence to be proffered at the new hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.

3. The details of any testimony desired to be introduced at the new hearing in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the new hearing.

From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and "Statement of Necessity" to:

DISPOSITION

Defendants have motioned to dismiss this action for lack of prosecution. (Doc. No. 60.) They state that on July 8, 2015, Plaintiff failed to appear at a scheduled deposition. (Id. ¶ 4.) For his part, Plaintiff alleges that at the time of deposition, he was incarcerated in the Franklin County Jail on misdemeanor charges. (Doc. No. 62 at 1.)

After review of the record, I conclude that Defendants' Motion should be granted. Pro se litigants are bound by the same rules as lawyers, particularly with respect to discovery requirements. See Lindstedt v. City of Granby, 238 F.3d 933, 937 (8th Cir. 2000). Rule 37 of the Federal Rule of Civil Procedure provides that a party may be sanctioned for failing to appear at a properly noticed deposition. Fed. R. Civ. P. 37(d)(1)(A)(I). In reaching this conclusion, I place particular emphasis on the fact that Plaintiff was released from jail on the date of the deposition (Doc. No. 62 at 1) but made no efforts to contact defense counsel upon release or any time thereafter. It was only until after they filed their motion on July 23, 2015, that Mr. Jones raised this defense. (Doc. No. 63 ¶ 3.)

This dismissal should be without prejudice so Plaintiff may reopen this matter by tendering the court reporter's fee1 for the missed deposition to Defendants.

IT IS, THEREFORE, RECOMMENDED THAT:

1. Defendants' Motion to Dismiss for Failure to Prosecute (Doc. No. 60) be GRANTED.

2. If Plaintiff wishes to reopen this action, he should first be required to reimburse Defendants for the court reporter's fees they incurred on July 8, 2015.

3. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from any Order adopting these recommendations would not be taken in good faith.