United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION DISMISSING THE COMPLAINT
FOR FAILURE TO PROSECUTE
L. CABELL, U.S.M.J.
Winchester (“the plaintiff” or
“Winchester”) brought a state court claim against
the U.S. Postal Service, which in turn removed the matter in
December 2017 to federal court. The plaintiff has since then
failed to participate in the lawsuit, at all. On March 16,
2018, this court issued an order to show cause why the court
should not recommend that the case be dismissed for failure
to prosecute. The record reflects that the plaintiff received
notice of the court's order to show cause but nonetheless
failed to respond. The court recommends that the case be
reassigned to a District Judge and that the complaint be
dismissed without prejudice for lack of prosecution.
September 25, 2017, the plaintiff, alleging the defendant
failed to compensate him for work he performed on its
premises, brought a claim against the U.S. Postal Service in
the Worcester District Court. (Dkt. No. 6). On December 12,
2017, the defendant removed the matter to this court. (Dkt.
January 9, 2018, the court issued an electronic notice
reminding the parties to file their notification forms
indicating whether the parties consent to proceed before a
U.S. Magistrate Judge. (Dkt. No. 4). The plaintiff failed to
January 31, 2018, the court issued a second electronic order
requiring the plaintiff to respond by February 9, 2018. (Dkt.
No. 7). The plaintiff again did not respond.
February 27, 2018, the defendant moved to dismiss the
complaint for failure to state a claim under Fed.R.Civ.P.
12(b)(6). (Dkt. No. 9). The plaintiff failed to file an
opposition or response to the motion to dismiss.
March 16, 2018, the court issued an electronic order to show
cause why the court should not recommend that the complaint
be dismissed as a result of the plaintiff's failure to
prosecute. (Dkt. No. 11). The record reflects that a copy of
the order was mailed to the plaintiff's last known
address. (Dkt. No. 12). Nonetheless, the plaintiff did not
respond to the order to show cause.
short, the plaintiff has never participated in the
prosecution of his claim against the defendant.
It is a
long-established principle that this court has the authority
to dismiss an action sua sponte for a
plaintiff's failure to prosecute his action and his
failure to follow the court's orders. FED. R. CIV. P.
41(b); D. MASS. L.R. 41.1(b) (The court may sua
sponte give notice of a “hearing on a dismissal
calendar for actions or proceedings assigned to that judge
that appear not to have been diligently prosecuted, ”
and may dismiss the case if the plaintiff fails to respond).
See also Link v. Wabash Railroad Co., 370 U.S. 626
(1962) (district court had inherent authority to dismiss a
case for failure to prosecute and does not abuse its
discretion in dismissing the case based, in part, on
plaintiff's failure to appear at pre-trial conference).
While the court exercises this authority with caution, it is
respectfully recommended that dismissal is appropriate in the
case at hand. Without the plaintiff's active
participation, the court has no means to effect the
advancement of the case to a resolution on the merits.
it is my recommendation that the case be reassigned to a
District Judge and that the District Judge dismiss the
complaint, without prejudice, for failure to