Sanchez v. Grondolsky et al

Filing 41

Judge Allison D. Burroughs: ORDER entered. re 20 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) filed by Ivanoff, Berman Yeh, United States of America (McDonagh, Christina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DANIEL SANCHEZ,
Plaintiff,
v.
JEFFREY GRONDOLSKY, et al.,
Defendants.

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Civil Action No. 17-cv-10666-ADB

ORDER OF DISMISSAL WITHOUT PREJUDICE
BURROUGHS, D.J.
Currently pending before the Court is Defendants’ motion to dismiss filed on November
13, 2017. [ECF No. 20]. Pro se Plaintiff had fourteen days to oppose the motion, D. Mass. L.R.
7.1(b)(2), making his opposition due on November 27, 2017. On November 30, 2017, after
Plaintiff had not filed an opposition to the motion to dismiss or requested additional time within
which to do so, Plaintiff was ordered to show cause by December 5, 2017 as to why he had not
timely responded to Defendants’ motion, and was notified that failure to file a timely response to
the show cause order may result in dismissal of the case. [ECF No. 24]. On December 5, 2017,
Defendant notified the Court of his new mailing address following his deportation which was
scheduled to occur on December 7, 2017. [ECF No. 25]. He also requested an additional 90 days
to respond to the motion to dismiss, which the Court granted. [ECF Nos. 26, 27]. On January 9,
2018, Plaintiff’s motion for leave to proceed in forma pauperis [ECF No. 29] was granted. [ECF
No. 35]. Plaintiff, however, failed to file any response to the motion to dismiss prior to the
expiration of the 90-day extension. On March 14, 2018, the Court ordered Plaintiff to show cause
by March 30, 2018 as to why he had not timely responded to the motion, and was notified that

the motion may be granted as unopposed if he failed to timely respond to the show cause order.
As of this date, Plaintiff has not filed a response to the motion to dismiss or the March 14 order
to show cause.
“A district court, as part of its inherent power to manage its own docket, may dismiss a
case for any of the reasons prescribed in Federal Rule of Civil Procedure 41(b), including failure
of the plaintiff to comply with any order of the court,” and “[l]ack of diligent prosecution.”
Torres-Álamo v. Puerto Rico, 502 F.3d 20, 25 (1st Cir. 2007); Cintron-Lorenzo v. Departamento
de Asuntos del Consumidor, 312 F.3d 522, 526 (1st Cir. 2002). In deciding whether to dismiss
the case, the Court considers the “totality of the circumstances,” including whether “(1)
plaintiff[] prosecuted [his or her] claims diligently prior to [his or her] apparent abandonment of
the lawsuit; (2) the court fairly warned plaintiff of its inclination to dismiss absent diligent
prosecution; and (3) the ramifications of the plaintiff[’s] failure to prosecute ‘constituted
misconduct sufficiently extreme to justify dismissal with prejudice.’” Dean v. Galletta, 2018 WL
1010285, at *1 (D.N.H. Jan. 29, 2018), adopting report and recommendation, 2018 WL 1010481
(D.N.H. Feb. 20, 2018) (quoting Diaz-Santos v. Dep’t of Educ., 108 Fed. Appx. 638, 640 (1st
Cir. 2004)).
As discussed above and in the prior orders to show cause, Plaintiff made sporadic contact
with the Court prior to his deportation. In light of his changed circumstances, the Court granted
his request for an additional 90 days to respond to the motion to dismiss, and indicated in both of
its show cause orders that failure to comply with the Court’s orders may result in dismissal of the
case. As Plaintiff failed to respond to the March 14 order to show cause, and has not otherwise
responded to the motion to dismiss filed in November 2017, the Court shall dismiss Plaintiff’s
case. The court declines, however, to dismiss the action with prejudice, considering that

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Plaintiff’s failure to respond may be due to technical or logistical issues, either in receiving
notices or making court filings, or due to other circumstances that are reasonably outside of his
control. Accordingly, Plaintiff’s case is DISMISSED WITHOUT PREJUDICE.
SO ORDERED.
April 5, 2018

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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