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
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