Antoine v. Kindred Healthcare, Inc.

Filing 42

Judge Nathaniel M. Gorton: ENDORSED ORDER entered adopting Report and Recommendations re 38 Report and Recommendations accepted and adopted. (Franklin, Yvonne)

Case l:17-cv-11691-NMG

Document 38 Filed 06/06/18 Page 1 of 3

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

JOEL ANTOINE,
Plaintiff,
CIVIL ACTION NO. 17-11691-NMG

V.

KINDRED HEALTHCARE, INC.,
Defendant.

REPORT AND RECOMMENDATION TO DISMISS CASE.

KELLEY, U.S.MJ.

This case has been referred to the undersigned for three motions: a motion to compel (#20)

by defendant Kindred Healthcare, Inc. referred on March 6, 2018 (#21); amotion to compel (#22)
by plaintiff Joel Antoine referred on March 9, 2018 (#23); and amotion for a Rule 16 conference
(#24) by Kindred Healthcare, Inc. referred on March 12, 2018 (#25). On March 15, 2018, a status
conference was scheduled for March 27,2018. (#26.) A notice ofthe scheduling conference issued

electronically, id., and a hard-copy of the notice was sent to plaintiff at the Cambridge address
then listed for him on the docket. (#27.) The copy mailed to Antoine has not been returned to the
court by the Post Office.

Plaintiffdid not appear atthe status conference, and when the clerk attempted to reach him

by telephone, his voicemail mailbox was full. (#28.) Antoine was ordered to file a document by
April 20, 2018, explaining his absence from the status conference and his absence from his
scheduled deposition on March 9, 2018. Id. It was further ordered that plaintiff s deposition was

to take place before April 20, 2018. Id. Plaintiff was advised that if no filings were received, the
court would issue an Order to Show Cause why the case should not be dismissed. Id. The court s

Case l:17-cv-11691-NMG Document 38 Filed 06/06/18 Page 2 of 3

Order (#28) was mailed to plaintiffon March 27, 2018, via regular and certified mail to the
Cambridge address then listed forhim on thedocket. Theregular mail hasnot been returned to the
court by the Post Office. The certified mail was returned to the court as unclaimed on April 25,
2018. (#33.)

On April 11, 2018, plaintiff filed a notice of change of address. (#30.) OnApril 23, 2018,
an Order issued noting thatAntoine had not stated when hisaddress had changed. (#31.) Plaintiff
was ordered to file a document by May4,2018, stating specifically the dateon which his address

changed; explaining his absence from the court hearing on March 27, 2018; and explaining why
he missed his scheduled deposition on March 9, 2018. Id. Antoine was advised that failure to

submit any filing by May 4, 2018, would result in the issuance of an Order to Show Cause why
the case should not be dismissed. Id. The court's Order (#31) was mailed to plaintiffon April 23,

2018, via regular and certified mail tothe new Foxboro address plaintiffhad submitted. (#32.) To
date, the regular mail sent to the Foxboro address has not been returned to the court by the Post
Office. The certified mail was marked as unclaimed and unable to forward by the Post Office, and
returned to the court on or about May 23,2018. (#37.)

In light of Antoine's failure to respond to the Orders issued by this court, and failure to

comply with his discovery obligations in this case, the court issued an Order to Show Cause on

May 16, 2018. (#35.) Plaintiff was ordered to show cause on or before the close of business on
Friday, June 1, 2018, why this case should not be dismissed. Id. He was advised that failure to

respond to the Order to Show Cause would result in the issuance ofaReport and Recommendation
tothe districtjudge that this case be dismissed. Id. The Order to Show Cause was mailed toplaintiff

by regular and certified mail. (#36.) Neither the regular mail nor the certified mail has been
returned to the court by the Post Office.

Case l:17-cv-11691-NMG Document 38 Filed 06/06/18 Page 3 of 3

As of this date, Antoine has failed to respond to the court's Order to Show Cause. In light

ofall ofthe circumstances, i.e., plaintiff's ongoing failure to respond to court Orders orto comply

with his discovery obligations, I RECOMMEND that the complaint be DISMISSED and that this
case be TERMINATED.

Review Bv The District Judge.

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

specific written objections with the Clerk ofthis Court within 14 days ofthe party's receipt ofthis
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 ofAppeals for this Circuit has repeatedly indicated

that failure to comply with Rule 72(b), Federal Rules Civil Procedure, shall preclude further

appellate review. See Keating v. Secretary ofHealth &Human Servs., 848 F.2d 271 (1st Cir.
1988); UnitedStates 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);
ParkMotor Mart, Inc. v. FordMotor Co., 616 F.2d 603 (1st Cir. 1980);

also Thomas v. Arn,

474 U.S. 140 (1985).

/s/ M. Page Kellev

M. Page Kelley

June 6 2018

United States Magistrate Judge