Foster v. CVS AL Distribution, LLC et al

Filing 14

OPINION. Signed by Honorable Judge Myron H. Thompson on 1/5/17. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
WALTER FOSTER,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CVS AL DISTRIBUTION, LLC,
et al.,
Defendants.

CIVIL ACTION NO.
2:16cv795-MHT
(WO)

OPINION
On November 16, 2016, the United States Magistrate
Judge held a hearing on the motions to withdraw by the
plaintiff’s counsel (doc. nos. 7 & 9) in light of the
death of the plaintiff (doc. no. 8).
hearing

were

counsel

Foster,

Jr.,

who

for

both

indicated

he

Present at the

sides
was

and

in

Mr.

Walter

attendance

on

behalf of the estate--though an executor has not yet
been

appointed

through

probate

explained

that

and

the

estate

proceedings.
the

estate

could

had
The
not

not

yet

passed

magistrate
proceed

judge

without

attorney representation and instructed Mr. Foster that

he

and

any

other

interested

December

30,

2016,

either

represent

the

estate

in

party

statement

indicating

to

this

they

would

secure

lawsuit

were

have

until

counsel

or

to

unable

to

file

to

a

obtain

counsel, which could then lead to the dismissal without
prejudice of this lawsuit.

Mr. Foster was specifically

cautioned that the failure to file a response would be
treated as an abandonment of the claims and a failure
to

prosecute.

written

order

The
(doc.

magistrate
no.

11)

judge

then

summarizing

issued
the

a

oral

instructions given at the hearing and instructing the
former plaintiff’s counsel to provide Mr. Foster and
any other known family members a copy of the order.
The

deadline

for

response

response has been filed.

has

now

passed,

and

no

In short, given the current

circumstances, there is no longer a plaintiff.
The Supreme Court has long held that courts may
dismiss actions under Rule 41(b) sua sponte.
v.

Wabash

R.

(interpreting

Co.,
Rule

370

U.S.

41(b)

to
2

626,

630-32

authorize

sua

See Link
(1962)
sponte

dismissals for failure to prosecute or comply with the
court’s order).
***
Accordingly,
without

prejudice

Procedure

41(b).

the

complaint

pursuant
An

to

will

Federal

appropriate

be
Rule

judgment

dismissed
of

Civil

will

be

entered.
DONE, this the 5th day of January, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE