Birchman et al v United States of America

Filing 21

OPINION AND ORDER: The Court DIRECTS the Plaintiffs to show cause why this case should not be dismissed for failure to prosecute and failure to comply with the discovery process. Plaintiffs shall respond no later than 1/20/2021. Failure to respond will result in DISMISSAL of this cause. Signed by Judge Holly A Brady on 1/6/21. (ksp)

USDC IN/ND case 1:19-cv-00128-HAB-SLC document 21 filed 01/06/21 page 1 of 2

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
PAUL BIRCHMAN and
KATHY BIRCHMAN

)
)
)
Plaintiff,
)
)
v.
) CASE NUMBER: 1:19 CV 0128-HAB
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
________________________________________ )
OPINION AND ORDER
Before the Court is the Defendant’s Motion to Dismiss Plaintiffs’ Complaint for Failure to
Prosecute (ECF No. 19) filed on November 20, 2020. In the motion and accompanying brief, the
Defendant asserts that the Plaintiffs have failed to prosecute their case or cooperate during
discovery.
On March 28, 2019, Plaintiffs brought this lawsuit pursuant to the Federal Tort Claims Act,
28 U.S.C. § 2671 et seq., alleging medical malpractice by medical providers at the Veterans
Affairs’ medical centers. Since then, not much has transpired on the docket. Numerous extensions
of the deadlines set out in the September 27, 2019, Report of Parties Planning Meeting have been
granted. (ECF Nos. 12, 13, 18). Plaintiffs failed to respond to discovery forcing Defendant to file
a motion to compel. (ECF No. 15). Plaintiffs did not respond to the motion to compel and on
October 23, 2020, the Magistrate Judge granted the motion to compel and ordered the Plaintiffs,
by November 6, 2020, to fully answer Defendant’s interrogatories and fully respond to the requests
for production of documents served on them on June 17, 2020. (ECF No. 16). Defendant represents
in its current brief that this discovery still remains outstanding.

USDC IN/ND case 1:19-cv-00128-HAB-SLC document 21 filed 01/06/21 page 2 of 2

Unsurprisingly in light of this history, the Plaintiffs filed no response to the motion to
dismiss. This, in addition to the failure to comply with court-ordered deadlines and participate in
discovery, leads the Court to believe that the Plaintiffs have abandoned their claims and that the
Defendant’s Motion should be granted. Accordingly, the Court now DIRECTS the Plaintiffs to
show cause why this case should not be dismissed for failure to prosecute and failure to comply
with the discovery process. Plaintiffs shall respond no later than January 20, 2021. Failure to
respond will result in the DISMISSAL of this cause pursuant to Fed.R.Civ.P. 37 and Fed.R.Civ.P.
41(b).
SO ORDERED on January 6, 2021.
s/ Holly A. Brady
JUDGE HOLLY A. BRADY
UNITED STATES DISTRICT COURT