Ties et al v. Strain et al

Filing 50

MEMORANDUM AND ORDER adopting Findings and Recommendation 48 and granting Stipulation for Dismissal 49 . IT IS ORDERED: The magistrate judge's findings and recommendation 48 are adopted and all claims alleged by the plaintiff, Larry Ties, are dismissed with prejudice for want of prosecution. The joint stipulation and motion filed by the remaining parties 49 is granted and all claims alleged by the plaintiff, Loretta A. Ties, and all claims alleged by the third-party plaintiff, Alan Brian Strain d/b/a Strain Enterprises, are dismissed with prejudice, with costs taxed to the parties incurring the same. Final judgment will be entered by separate document. Ordered by Judge Richard G. Kopf. (Copy mailed to Pro Se party) (TEL)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA LARRY TIES and LORETTA A. TIES, ) ) Plaintiffs, ) v. ) ) ALAN BRIAN STRAIN ) d/b/a STRAIN ENTERPRISES, ) ) Defendant and ) Third-Party Plaintiff, ) v. ) ) SAHLING KENWORTH, INC., ) ) Third-Party Defendant. ) 4:09CV3172

MEMORANDUM AND ORDER

This matter is before the court on the findings and recommendation filed by Magistrate Judge Zwart on January 31, 2011 (filing 48). Judge Zwart recommends dismissal of all claims brought by the plaintiff, Larry Ties, for want of prosecution. No objections have been filed to the findings and recommendation within the time permitted by 28 U.S.C. § 636(b)(1). In any event, I have conducted a de novo review and find that Judge Zwart has correctly found the facts and applied the law. Pursuant to Federal Rule of Civil Procedure 41(b), a dismissal for want of prosecution "operates as an adjudication on the merits" unless the court specifies otherwise. Considering that the plaintiff failed to comply with the court's order of November 29, 2010 (filing 44), I conclude the dismissal should be with prejudice. The remaining parties have reached a settlement and filed a joint stipulation and motion for dismissal with prejudice of all claims alleged by the plaintiff, Loretta A. Ties, and all claims alleged by the third-party plaintiff, Alan Brian Strain d/b/a

Strain Enterprises (filing 49). The motion will be granted pursuant to Federal Rule of Civil Procedure 41(a). Accordingly, IT IS ORDERED: 1. The magistrate judge's findings and recommendation (filing 48) are adopted and all claims alleged by the plaintiff, Larry Ties, are dismissed with prejudice for want of prosecution. The joint stipulation and motion filed by the remaining parties (filing 49) is granted and all claims alleged by the plaintiff, Loretta A. Ties, and all claims alleged by the third-party plaintiff, Alan Brian Strain d/b/a Strain Enterprises, are dismissed with prejudice, with costs taxed to the parties incurring the same. Final judgment will be entered by separate document.

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February 25, 2011.

BY THE COURT:

Richard G. Kopf
United States District Judge

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