Dancy v. Wireless Vision LLC

Filing 21

MEMORANDUM AND ORDER OF DISMISSAL IT IS HEREBY ORDERED that Plaintiffs cause of action is DISMISSED without prejudice. IT IS FURTHER ORDERED that all pending motions are DENIED as moot. Signed by District Judge Ronnie L. White on 7/11/18. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARRELL DANCY,
Plaintiff,
v.
WIRELESS VISION, LLC,
Defendant.

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No. 4:17CV2126 RLW

MEMORANDUM AND ORDER OF DISMISSAL
This matter is before the Court on Plaintiff's counsel's failure to comply with the Court's
Order to Show Cause dated June 29, 2018. (ECF No. 20) Plaintiff originally filed a Petition for
Damages and Other Relief in the Circuit Court of St. Louis County, Missouri on May 26, 2017
against Defendant Wireless Vision, LLC. (Pet., ECF No. 4) On July 24, 2017, Defendant
removed the case to federal court based on federal question jurisdiction. (ECF No. 1) Plaintiff
alleges that Defendant terminated Plaintiff's employment in violation of the Family Medical
Leave Act ("FMLA"), 29 U.S.C. §§ 2601, et seq., (Count I). He also claims that Defendant
violated the Missouri Service Letter Statute, Mo. Rev. Stat. § 290.140 (Count II) and slandered
Plaintiff (Count III).
On August 4, 2017, the Court issued an Order Setting Rule 16 Conference, which
scheduled the Rule 16 Conference on September 7, 201 7, with the Joint Proposed Scheduling
Plan due August 31, 2017. (ECF No. 7) The Court continued the conference to September 26,
2017 after the parties did not timely file their joint scheduling plan. On September 20, 2017,
Defendant filed its own proposed scheduling plan; Plaintiff did not file a scheduling plan or
otherwise comply with the Rule 16 Order. (ECF No. 9) On September 21, 2017, the Court

issued the Case Management Order ("CMO") based on the proposed scheduling plan submitted
by the Defendant. (ECF No. 11)
Pursuant to the CMO, the Court issued an Order Referring Case to Alternate Dispute
Resolution ("ADR") on January 18, 2018. (ECF No. 12) The Order designated Richard J.
Magee, Jr., Plaintiffs attorney ofrecord, as lead counsel for ADR proceedings. On January 30,
2018, the parties filed a Joint Motion to Amend Case Management Order, seeking extensions of
the discovery and dispositive motion deadlines, as well as a new date for referral to ADR. (ECF
No. 13) The Court granted the motion and then issued another Order Referring the Case to ADR
on April 20, 2018. (ECF Nos. 14, 15) The ADR Order set the ADR completion date as June 15,
2018. (ECF No. 15) The Order further specified, "[i]f a deadline cannot be met, the designated
lead counsel shall file a motion requesting an extension of the deadline prior to the expiration
of that deadline. Noncompliance of any deadline set herein by this Court may result in the
imposition of sanctions to the appropriate party or parties." (Id. at pp. 2-3)
Thereafter, on June 5, 2018 and again on June 28, 2018, Defendant filed Consent
Motions to Amend CMO indicating that, despite numerous attempts to facilitate discovery with
Plaintiff, he has not completed discovery responses or scheduled a date for Plaintiffs deposition.
(ECF No. 16 ~ 3; ECF No. 19 ~ 4) Defendant also filed a Motion to Compel Discovery,
asserting that Plaintiff has failed to respond to discovery requests or provide available dates for
Plaintiffs deposition or mediation. (ECF No. 18) Rather than continue extending the dates in
the CMO, the Court ordered Plaintiff to show cause for his failure to comply with Court Orders.
(ECF No. 20) Specifically, the Court ordered Plaintiff to "show cause in writing and no later
than July 6, 2018 why this case should not be dismissed for failure to prosecute or otherwise

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comply with Orders from this Court." (Id.) The Order further stated, "[ f]ailure to comply with
this Order will result in dismissal of Plaintiff's Complaint with prejudice." (Id.)
The deadline has passed, and Plaintiff has not complied with the Court's Order, requested
an extension of time, or otherwise communicated with the Court. Indeed, Plaintiff has not filed
anything since the case was removed to federal court nearly one year ago. Therefore, the Court
finds that dismissal of Plaintiffs Petition is warranted for failure to prosecute, failure to comply
with discovery requests, and failure to comply with the orders of this Court. Fed. R. Civ. P.
41(b); see also Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) ("A district court has the
power under Fed.R.Civ.P. 41(b) to dismiss an action for the plaintiffs failure to comply with any
court order.") While the Court could dismiss the case with prejudice, the Court finds that
dismissal without prejudice is appropriate. See Jones v. Hertz Corp., No., 2011 WL 6812912, at
*4 (E.D. Mo. Dec. 28, 2011) (dismissing plaintiffs claims without prejudice under Rule 41(b)
for failure to prosecute, participate in discovery, and comply with court orders).
Accordingly,

IT IS HEREBY ORDERED that Plaintiffs cause of action is DISMISSED without
prejudice.

IT IS FURTHER ORDERED that all pending motions are DENIED as moot.
Dated this 11th day of July, 2018.

UNITED ST ATES DISTRICT JUDGE

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