Figueroa v. Crown Equipment Corporation

Filing 28

Judge Mark L. Wolf: MEMORANDUM AND ORDER entered granting (25) Motion to Dismiss; adopting Report and Recommendations re (26) Report and Recommendations in case 1:15-cv-14113-MLW. (Attachments: # 1 Report and Recommendation) Associated Cases: 1:15-cv-14113-MLW, 1:15-cv-14115-MLW(Bono, Christine)

Case l:15-cv-14113-MLW Document 26 Filed 06/20/17 Page lot 2

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MICHAEL FIGUEROA,
Plaintiff,

CIVIL ACTION NO. 15-14113-MLW

V.

CROWN EQUIPMENT CORPORATION,
Defendant.

REPORT AND RECOMMENDATION

ON CROWN EQUIPMENT CORPORATION'S
RULE 37 MOTION FOR DISMISSAL OF THE CASE(#251

KELLEY,U.S.M.J.

On April 19, 2017, the court granted Crown Equipment Corporation's Motion to Compel
(#23) and ordered that Michael Figueroa serve his initial disclosures, answer interrogatories and
produce documents within ten days. (#24.) To date, plaintiff has failed comply with the court's
order in that he has not filed the initial disclosures or responded to the discovery requests. At this

juncture, defendant seeks dismissal of this action pursuant to Fed. R. Civ. P. 37.
In pertinent part, the rule provides as follows:
(b)Failure to Comply with a Court Order

(2)Sanctions Sought in the District Where the Action Is Pending.
(A)For Not Obeying a Discovery Order. If a party or a party's officer, director, or

managing agent~or a witness designated under Rule 30(b)(6) or 31(a)(4)~fails to
obey an order to provide or permit discovery, including an order under Rule 26(f),
35,or 37(a), the court where the action is pending may issue furtherjust orders. They
may include the following:

Case l:15-cv-14113-MLW Document 26 Filed 06/20/17 Page 2 of 2

(v) dismissing the action or proceeding in whole or in part.

Fed. R. Civ. P. 37{b)(2)(A)(v). The time for filing an opposition to the motion to dismiss has passed,

and plaintiffs counsel has informed the clerk that, in fact, no opposition to the dispositive motion
will be filed.

In these circumstances, I RECOMMEND that Crown Equipment Corporation's Rule 37

Motion for Dismissal of the Case (#25) be GRANTED and that the case be dismissed pursuant to
Fed. R. Civ. P. 37(b)(2)(A)(v) for failure to comply with the court's discovery order.

The parties are hereby advised that any party who objects to this recommendation must file

specific written objections with the Clerk of this Court within 14 days ofthe party's receipt of this
Report and Recommendation. The objections must specifically identify the portion of the
recommendation to which objections are made and state the basis for such objections. The parties
are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated

that failure to comply with Rule 72(b), Fed. R. Civ. P., shall preclude further appellate review. See

Keating v. Secretary of Health & Human Servs.^ 848 F.2d 271 (1st Cir. 1988); United States v.
Emiliano Valencia-Copete, 792 F.2d 4(1st Cir. 1986); Scott v. Schweiker^ 702 F.2d 13, 14(1st Cir.

1983); United States v. Vega,678 F.2d 376,378-379(1st Cir. 1982); Park Motor Mart, Inc. v. Ford
Motor Co.,616 F.2d 603 (1st Cir. 1980); see also Thomas v. Arn,474 U.S. 140(1985).

/s/ M. Page Kellev

M.Page Kelley

June 19,2017

United States Magistrate Judge