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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
MATTHEW THEISEN, et al.,
Plaintiffs,
vs.
STODDARD COUNTY, et al.,
Defendants.
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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
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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.
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