Davis v. Nationwide-Southeast, Inc. et al

Filing 6

OPINION AND ORDER adopting Magistrate Judge J. Clay Fullers Final Report and Recommendation 4 and dismissing this action without prejudice pursuant to Local Rule 41.3(A)(2) for failure to comply with a lawful order of the Court. Signed by Judge William S. Duffey, Jr on 3/29/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RODNEY DAVIS,
Plaintiff,
v.

1:16-cv-04191-WSD

NATIONWIDE-SOUTHEAST,
INC., et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge J. Clay Fuller’s Final
Report and Recommendation [4] (“R&R”), recommending this action be dismissed
for failure to abide by a lawful order of the Court.
I.

BACKGROUND
On November 8, 2016, Plaintiff Rodney Davis (“Plaintiff”) filed a complaint

for violations of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101,
et seq. ([1]). Plaintiff did not provide proof of service of process on Defendants
within the 90-day timeframe allowed by Rule 4(m) of the Federal Rules of Civil
Procedure. On February 7, 2017, the Magistrate Judge directed Plaintiff to “either
submit documentation that service was waived or timely effectuated [on
Defendants] or to show cause, within 14 days from the date of entry of this Order,

why the complaint should not be dismissed without prejudice for failure to serve
Defendants within 90 days of filing of the complaint.” (February 7th Order [2] at
1-2). Plaintiff did not respond to the February 7th Order.
On February 22, 2017, the Magistrate Judge issued another order directing
Plaintiff to comply with the February 7th Order “by submitting documentation that
service was waived or timely effectuated and show cause no later than 14 days
from the date of entry of this Order why the complaint should not be dismissed for
failure to serve Defendants and comply with the Court’s Orders.” (February 22nd
Order [3] at 2). The Magistrate Judge warned Plaintiff that failure to comply with
a lawful order of the court may result in dismissal of this action. (Id.). Plaintiff
did not respond to the February 22nd Order.
On March 9, 2017, the Magistrate Judge issued his R&R. In it, he
recommends that the Court dismiss this action for Plaintiff’s failure to comply with
the February 7th Order and February 22nd Order. Plaintiff did not file any
objections to the R&R, and has not otherwise taken any action in this matter.
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
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judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983).
No party objects to the R&R, and the Court thus conducts a plain error review of
the record. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).
B.

Analysis

Under Local Rule 41.3(A)(2), “[t]he court may, with or without notice to the
parties, dismiss a civil case for want of prosecution if: . . . [a] plaintiff . . . shall,
after notice, . . . fail or refuse to obey a lawful order of the court in the case.” L.R.
41.3(A)(2), NDGa.
Plaintiff failed to comply with the February 7th Order and February 22nd
Order after being advised that failure to comply with these orders may result in the
dismissal of this action. The Magistrate Judge recommends this action be
dismissed for Plaintiff’s failure to comply with the Court’s orders. The Court finds
no plain error in this finding and recommendation. Slay, 714 F.2d at 1095.
Accordingly, this action is dismissed pursuant to Local Rule 41.3(A)(2).
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge J. Clay Fuller’s Final

Report and Recommendation [4] is ADOPTED.
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IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT
PREJUDICE pursuant to Local Rule 41.3(A)(2) for failure to comply with a
lawful order of the Court.

SO ORDERED this 29th day of March, 2017.

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