Theisen et al v. Stoddard County et al

Filing 68

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that defendants' motions to dismiss [#43, #45] are denied. IT IS FURTHER ORDERED that: Plaintiffs must file a second amended complaint no later than April 18, 2014. The plaintiffs are advised that the n ew complaint must comply with the Federal Rules of Civil Procedure, especially Rules 8 and 10, and the Memorandum and Order dated June 27, 2013. No later than April 18, 2014, plaintiffs must also show cause in writing why the two unserved defendants, Missouri Department of Mental Health and Keith Schafer, should not be dismissed for lack of timely service in accordance with Rule 4(m), Fed. R. Civ. P. Finally, no later than April 18, 2014, plaintiffs must file any motion for appointment of next friend, accompanied by supporting affidavits and any other appropriate evidence ( Amended/Supplemental Pleadings due by 4/18/2014., Show Cause Response due by 4/18/2014.). Signed by District Judge Catherine D. Perry on 3/24/14. (MRS)

Download PDF
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION MATTHEW THEISEN, et al., Plaintiffs, vs. STODDARD COUNTY, et al., Defendants. ) ) ) ) ) ) ) ) ) Case No. 1:13 CV 32 CDP MEMORANDUM AND ORDER This action is before me on two motions to dismiss filed by the defendants. The defendants seek to dismiss this case with prejudice because the plaintiffs failed to comply with my order directing the plaintiffs to file a second amended complaint. See Rule 41(b), Fed. R. Civ. P. (“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.”) The plaintiffs did not, as ordered, file the amended complaint by the court-ordered deadline on July 18, 2013. Unfortunately, this was because their counsel had died abroad a week before the deadline, on July 11, 2013. (See Doc. 67-1.) In light of the death of plaintiffs’ counsel, I stayed this case for several months so plaintiffs could seek a new attorney. They have now secured counsel, and I have lifted the stay. Because their failure to comply with my court order was entirely involuntary, see Rodgers v. Curator of Univ. of Mo., 135 F.3d 1216, 1219 (8th Cir. 1998), it would not be interest of justice to dismiss this case. Accordingly, IT IS HEREBY ORDERED that defendants’ motions to dismiss [#43, #45] are denied. IT IS FURTHER ORDERED that: Plaintiffs must file a second amended complaint no later than April 18, 2014. The plaintiffs are advised that the new complaint must comply with the Federal Rules of Civil Procedure, especially Rules 8 and 10, and the Memorandum and Order dated June 27, 2013. No later than April 18, 2014, plaintiffs must also show cause in writing why the two unserved defendants, Missouri Department of Mental Health and Keith Schafer, should not be dismissed for lack of timely service in accordance with Rule 4(m), Fed. R. Civ. P. Finally, no later than April 18, 2014, plaintiffs must file any motion for appointment of next friend, accompanied by supporting affidavits and any other appropriate evidence. As long as the motion for appointment of next friend is accompanied by proper support, the plaintiffs may change their parents’ designation to “next friend” on the new amended complaint. Alternatively, if they –2– no longer wish for their parents to be designated as next friends, the plaintiffs may drop the parents from the new complaint. CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE Dated this 24th day of March, 2014. –3–

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?