Foster v. Swissport Fueling Services

Filing 28

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Defendant's Motion to Dismiss for Failure to Prosecute (ECF No. 26 ) is GRANTED. IT IS FURTHER ORDERED that Plaintiffs Employment Discrimination Complaint is DISMISSED with prejudice for failur e to prosecute or otherwise comply with Orders of this Court. A separate Order of Dismissal will accompany this Memorandum and Order. IT IS FINALLY ORDERED that the Clerk of the Court shall send a copy of this Order and the Order of Dismissal to Plaintiff via regular mail and UPS at the following address: Jesse Foster 12081 Rosemist Drive St. Louis, MO 63138. Signed by District Judge Ronnie L. White on 4/13/2017. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JESSE FOSTER,
Plaintiff,
v.

SWlSSPORT FUELING SERVICES,
Defendant.

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No. 4:16CV1384 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Defendant's Motion to Dismiss for Failure to
Prosecute (ECF No. 26). For the following reasons, the Court will grant Defendant's motion.
Procedural Background

On August 26, 2016, Plaintiff filed a pro se Employment Discrimination Complaint
against Defendant Swissport Fueling Services under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e, et seq., 42 U.S.C. § 1981 , and the Missouri Human Rights Act.
Plaintiff alleges that Defendant discriminated against him on the basis of race, retaliated against
him, and subjected him to a hostile work environment. On September 12, 2016, the Court
granted Plaintiffs Motion to Proceed In Forma Pauperis, and Defendant filed its Answer on
October 20, 2016. The Court set the case for a Rule 16 conference, ordering Plaintiff to meet
with opposing counsel to prepare a joint proposed scheduling plan and to appear in Courtroom
10-South on December 20, 2016. (ECF No. 18) Plaintiff did not appear for the Rule 16
conference or otherwise participate in drafting the joint scheduling plan.
The Court then issued a Case Management Order ("CMO") on December 20, 2016,
noting that Plaintiff failed to appear at the Rule 16 conference in noncompliance of this Court's

Order. In addition, the CMO advised prose Plaintiff that he was required to follow the same
Court rules and orders as an attorney. (ECF No. 21) On February 6, 2017, Defendant filed a
Motion to Compel, asserting that Plaintiff failed to submit Rule 26(a) Initial Disclosures or
responses to discovery requests. Defendant further stated that Plaintiff failed to respond to all
written and telephonic attempts to resolve the disputes. (ECF No. 22) The Court then scheduled
a hearing on the Motion to Compel and further ordered that "[b]oth parties shall appear in
person." (ECF No. 23) On the hearing date, March 1, 2017, counsel for Defendant Swissport
Fueling Services appeared in person. Plaintiff was not present, and counsel for Defendant orally
moved to dismiss the cause of action. (ECF No. 25) On March 2, 2017, Defendant filed the
present Motion to Dismiss for Failure to Prosecute. (ECF No. 26) After Plaintiff failed to file a
timely response in opposition, the Court issued an Order to Show Cause, ordering the Plaintiff to
show cause why Defendant's motion to dismiss should not be granted. (ECF No. 27) The Court
specified that Plaintiff shall show cause in writing, and no later than April 12, 2017. (Id.) As of
this date, Plaintiff has failed to respond to the Court's Order, and the time for doing so has
expired.
Discussion

Under Federal Rule of Civil Procedure 41(b), "[i]fthe 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." Fed. R. Civ. P. 41(b). Unless the order states otherwise, a dismissal under
Rule 41 (b) operates as an adjudication on the merits. Id. "Because dismissal with prejudice is
an extreme sanction, it should be employed only in cases of willful disobedience of a court order
or persistent failure to prosecute a complaint. Devoto v. Corizon, Inc., No. 2:13CV00019 ERW,
2014 WL 294326, at *3 (E.D. Mo. Jan. 27, 2014)) (citation omitted). "The district court need

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not find that the party acted in bad faith, but only that [he] acted intentionally as opposed to
accidentally or involuntarily." Doe v. Cassel, 403 F.3d 986, 990 (8th Cir. 2005) (citation
omitted).
The Court is aware of the liberal pleading standards afforded to pro se litigants.
However, in the instant case, Plaintiff has failed to comply with the Federal Rules of Civil
Procedure and with Orders of this Court, including Orders to appear for hearings. In addition,
Plaintiff did not file responses to discovery requests or to Defendant's Motion to Compel or
Motion to Dismiss. Finally, the Plaintiff has failed to show cause why the case should not be
dismissed as ordered by this Court on March 29, 2017. Indeed, Plaintiff has taken no action in
this case since filing his Complaint seven months ago. Thus, the Court finds that dismissal with
prejudice for failure to prosecute is warranted in this case. See Devoto, 2014 WL 294326, at *3
(dismissing plaintiffs complaint with prejudice for failure to prosecute where the plaintiff failed
to respond to discovery requests, ignored defendant's motion to dismiss, and failed to respond to
the court's order to show cause why the motion to dismiss should not be granted).
Accordingly,
IT IS HEREBY ORDERED that Defendant's Motion to Dismiss for Failure to
Prosecute (ECF No. 26) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs Employment Discrimination Complaint is
DISMISSED with prejudice for failure to prosecute or otherwise comply with Orders ofthis
Court. A separate Order of Dismissal will accompany this Memorandum and Order.

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IT IS FINALLY ORDERED that the Clerk of the Court shall send a copy of this Order
and the Order of Dismissal to Plaintiff via regular mail and UPS at the following address:
Jesse Foster
12081 Rosemist Drive
St. Louis, MO 63138
Dated this 13th day of April, 20 17.

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RONNIE L. WIDTE
UNITED STATES DISTRICT JUDGE

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