Phillippy v. Brown et al

Filing 8

ORDER granting 3 Motion to Dismiss Case (CASE DISMISSED WITHOUT PREJUDICE). Signed by Honorable Robert T. Dawson on December 18, 2008. (tg)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION SIDNEY J. PHILLIPPY derivatively on behalf of ANB BANCSHARES, INC. and its wholly owned subsidiary ANB FINANCIAL NATIONAL ASSOCIATION v. Case No. 08-5230 INDIVIDUAL DEFENDANTS

PLAINTIFF

ERIC BROWN, HARRY BROWN, DAN DYKEMA, BLAKE EVANS and VICTOR EVANS and ANB BANCSSHARES, INC. and THE FEDERAL DEPOSIT INSURANCE CORPORATION as Receiver of ANB FINANCIAL NATIONAL ASSOCIATION ORDER

NOMINAL DEFENDANTS

Now before the Court is Defendants' Motion to Dismiss (Doc. 3). Plaintiff initially filed a verified shareholder derivative complaint in the Circuit Court of Washington County, Arkansas on July 8, 2008. Receiver of On May 9, 2008, the FDIC was appointed as and on October 24, 2008, the FDIC was

ANB,

substituted for ANB.

On September 11, 2008, Defendants filed a

motion to dismiss on the grounds that Plaintiff lacks standing to bring this suit. Plaintiff did not file a response, and

Defendants removed the case to this Court on October 29, 2008. On October 29, 2008, the Honorable Jimm Larry Hendren ordered Plaintiff to respond to the motion to dismiss within ten days. Plaintiff did not file a response, and this case was As of this

reassigned to the undersigned on November 13, 2008.

AO72A (Rev. 8/82)

date, Plaintiff has failed to respond to the motion to dismiss or to otherwise communicate with the Court that he intends to proceed with this action. Accordingly, Defendants' Motion (Doc. 3) is GRANTED, and Plaintiff's case is DISMISSED WITHOUT

PREJUDICE on the grounds that he has failed to prosecute it and has failed to comply with Court orders. 41(b). See Fed. R. Civ. P.

Should Plaintiff re-file this action, Defendants may

petition the Court to require the Plaintiff to show good and adequate cause for his failure to prosecute the instant action before he is allowed to proceed with a second action. IT IS SO ORDERED this 18th day of December 2008.

/s/ Robert T. Dawson Honorable Robert T. Dawson United States District Judge

AO72A (Rev. 8/82)