Evans v. Food Giant Supermarkets, Inc.
ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE: Plaintiff's claims are Dismissed without prejudice. The Clerk is Ordered to mail a copy of this Order to Plaintiff at his address of record. Signed by Chief District Judge Louis Guirola, Jr. on 2/7/2017 (wld) (Order mailed to plaintiff)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CAUSE NO. 1:15CV419-LG-RHW
FOOD GIANT SUPERMARKETS, INC.
ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE
This matter is before the Court sua sponte for consideration of dismissal of
Plaintiff’s claims for want of prosecution pursuant to Federal Rule of Civil
Procedure 41(b). Having reviewed the record in this action and applicable law, the
Court has determined that Plaintiff’s claims should be dismissed.
Plaintiff Evans was originally represented by counsel. On December 28,
2016, counsel moved to withdraw after Evans sent counsel a notarized document
signed by Evans “releasing” the attorney from the case. (See ECF No. 28-1).
Magistrate Judge Robert H. Walker granted the Motion to Withdraw and ordered
Plaintiff to “obtain substitute counsel or to inform the Court in writing of his
intention to proceed pro se” by February 3, 2017. (See Order, ECF No. 30). Judge
Walker specifically cautioned Plaintiff “that failure to obtain substitute counsel or
to inform the Court in writing of his intention to proceed pro se within the time
allowed may result in the dismissal of his lawsuit.” (Id.). A copy of Judge Walker’s
Order was mailed to Plaintiff at the mailing address provided by Evans on his letter
releasing counsel. However, to date, Plaintiff has not obtained substitute counsel or
otherwise informed the Court of his intention to proceed with this action.
In addition, on January 6, 2017, Defendant Food Giant moved for summary
judgment. On January 9, Judge Walker entered an Order extending Evans’ time to
respond to Food Giant’s arguments for summary judgment by February 3, 2017: “In
light of its previous order [affording Evans time to obtain a substitute attorney
should he want to do so], the Court finds that Plaintiff’s response to the motion for
summary judgment should be extended to February 3, 2017.” Despite this
extension, Evans has not filed a response or otherwise contacted the Court to
indicate that he intends to file one.
Federal Rule of Civil Procedure 41(b) states:
If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss
the action or any claim against it. Unless the dismissal
order states otherwise, a dismissal under this subdivision
(b) . . . operates as an adjudication on the merits.
Furthermore, the Court may sua sponte dismiss an action or claim under Rule
41(b). See Hickerson v. Christian, 283 F. App’x 251, 253 (5th Cir. 2008); see also Fox
v. Mississippi, 551 F. App’x 772, 775 (5th Cir. 2014).
Here, the Magistrate Judge warned Plaintiff that his failure to comply with
the Court’s Order could result in dismissal of this action. He also extended the time
for Plaintiff to respond to Defendant’s Motion for Summary Judgment well beyond
the normal response time. However, as discussed above, the Court has heard
nothing from Plaintiff since his counsel withdrew from this action at his request.
Plaintiff filed this lawsuit; it is his responsibility to prosecute his claims, and he has
not done so. Accordingly, the Court finds dismissal of Plaintiff’s claims in this
action proper under Rule 41(b). See Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir.
1998); Fox, 551 F. App’x at 775.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff’s claims
are DISMISSED WITHOUT PREJUDICE. The Clerk is ORDERED to mail a
copy of this Order to Plaintiff at his address of record.
SO ORDERED AND ADJUDGED this the 7th day of February, 2017.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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