McAdoo v. The Metropolitan Atlanta Transit Authority et al
Filing
47
OPINION AND ORDER not adopting Magistrate Judge John K. Larkins IIIs Final Report and Recommendation 35 . Plaintiffs Objection 43 to the Magistrate Judges R&R on MARTAs Motion to Dismiss and his Motion for Enlargement of Time to Answer Motion Not to Dismiss 44 are denied as moot. It is further ordered that Plaintiff shall, on or before May 12, 2017, provide the Court the following: (1) a statement indicating whether he intends to proceed pro se in this matter and (2) a single address to wh ich the clerks office will send filings in this matter. If Plaintiff subsequently changes the address to which he wants mailings sent, he must file a notice of change of address seven calendar days before he wants the change of address to go into effect. Signed by Judge William S. Duffey, Jr on 4/26/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
PHILLIP MCADOO,
Plaintiff,
v.
1:16-cv-734-WSD
THE MARTA/ATU LOCAL 732
EMPLOYEES RETIREMENT
PLAN and THE MARTA/ATU
LOCAL 732 EMPLOYEES
RETIREMENT PLAN
ALLOWANCE COMMITTEE,
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge John K. Larkins III’s
Final Report and Recommendation [35] (“R&R”). The R&R recommends the
Court dismiss this action without prejudice.
I.
BACKGROUND
On January 25, 2017, the Magistrate Judge granted Plaintiff Phillip
McAdoo’s (“Plaintiff”) counsel’s motion to withdraw from the case. ([31]
(“January 25th Order”)). The Magistrate Judge informed Plaintiff that he had 21
days in which to advise the Court of the appointment of a new attorney or whether
Plaintiff intends to proceed pro se. The January 25th Order required Plaintiff to
provide the new attorney’s contact information or Plaintiff’s contact information if
he intends to proceed pro se. (Id. at 2). The Magistrate Judge advised Plaintiff
that failure to comply with these requirements will “constitute a default” on his
part. (Id.). The Magistrate Judge directed the clerk and counsel to serve the order
on Plaintiff.
On February 2, 2017, Plaintiff filed his “Notice of Address” [32], in which
he lists two addresses, a temporary address in Griffin, GA, and a permanent
address in San Francisco. The Notice did not state whether Plaintiff intends to
proceed pro se.
On March 10, 2017, the Magistrate Judge issued his R&R. The Magistrate
Judge noted that more than 21 days passed since he issued his January 25th Order,
and that Plaintiff did not comply with the January 25th Order. Accordingly, the
Magistrate Judge recommends the Court dismiss this action without prejudice.
On March 10, 2017, Plaintiff filed his “Reply Notice of Deposition,” in
which he lists an address in San Francisco. On March 17, 2017, he filed another
document listing an address in San Francisco, but also listing a “Best Contact @
temporary address” in Griffin, Georgia. Plaintiff also filed multiple “objections” to
documents and to the Court’s grant of Defendant MARTA’s Motion to Dismiss.
([39], [41], [43]). He also filed a “Motion for Extension of Time to Answer
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Motion Not to Dismiss,” [44] despite that the Court has ruled on MARTA’s
Motion to Dismiss.
II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). Where no party has objected to the report and recommendation, the
Court conducts only a plain error review of the record. United States v. Slay,
714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). Though Plaintiff does not
specifically object to the R&R, the Court, in its discretion, conducts its de novo
review.
B.
Analysis
Local Rule 83.1(E)(4) provides:
Whenever an attorney withdraws or dies or is removed or suspended
or for any other reason ceases to act as attorney of record, the party
whom the attorney was representing must within twenty-one (21) days
or before any further proceedings are had in the action before the
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court notify the clerk of the appointment of another attorney or of the
party's decision to appear pro se. The party must also provide the
clerk with the current telephone number and address of the newlyappointed attorney or of the party, if proceeding pro se. Failure to
comply with this rule shall constitute a default by the party.
L.R. 83.1(E)(4).
Here, Plaintiff did not inform the Court whether he intends to proceed pro se
in this matter. Dismissal under Local Rule 83.1 is thus warranted. However, that
Plaintiff provided his address and then made multiple pro se filings in this action
supports that he does, in fact, intend to proceed pro se. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally
construed . . . .”). The Court, in its discretion, will allow Plaintiff a final
opportunity to inform the Court whether he intends to proceed pro se. The Court
also notes that Plaintiff has provided the Court two separate addresses, and it is
unclear to which address the clerk’s office should send documents filed in this
action. Accordingly, Plaintiff shall, on or before May 12, 2017, provide the Court
the following: (1) a statement indicating whether he intends to proceed pro se in
this matter and (2) a single address to which the clerk’s office will send filings in
this matter. If Plaintiff subsequently changes the address to which he wants
mailings sent, he must file a notice of change of address seven calendar days
before he wants the change of address to go into effect. Plaintiff is cautioned that a
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failure to provide this address and change notice which delays or otherwise
adversely affects the management of this case shall constitute grounds for
dismissal of this action without prejudice. L.R. 41.2(B). Plaintiff is also cautioned
that failure to comply with this Order will result in dismissal of this action for
failure to comply with a lawful order of the Court. L.R. 41.3(A)(2).1
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge John K. Larkins III’s
Final Report and Recommendation [35] is NOT ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Objection [43] to the
Magistrate Judge’s R&R on MARTA’s Motion to Dismiss and his “Motion for
Enlargement of Time to Answer Motion Not to Dismiss” [44] are DENIED AS
MOOT.
IT IS FURTHER ORDERED that Plaintiff shall, on or before
May 12, 2017, provide the Court the following: (1) a statement indicating whether
he intends to proceed pro se in this matter and (2) a single address to which the
1
Because the Court has already ruled on MARTA’s Motion to Dismiss,
Plaintiff’s Objection [43] to the Magistrate Judge’s R&R on MARTA’s Motion to
Dismiss and his “Motion for Enlargement of Time to Answer Motion Not to
Dismiss” [44] are denied as moot.
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clerk’s office will send filings in this matter. If Plaintiff subsequently changes the
address to which he wants mailings sent, he must file a notice of change of address
seven calendar days before he wants the change of address to go into effect.
Plaintiff is cautioned that a failure to provide this address and change notice which
delays or otherwise adversely affects the management of this case shall constitute
grounds for dismissal of this action without prejudice. L.R. 41.2(B).
IT IS FURTHER ORDERED that failure to comply with this Order will
result in dismissal of this action for failure to comply with a lawful order of the
Court. L.R. 41.3(A)(2).
The Clerk of Court is DIRECTED to send this Order to Plaintiff at the
following addresses: (1) 1388 Haight St. #213, San Francisco, CA 94117; and
(2) 225 Ella Circle, Griffin, GA 30223.
SO ORDERED this 26th day of April, 2017.
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