MEMORANDUM AND ORDER - The Motion to Dismiss Pro Se Intervenors for Failure to Comply with Court Orders, ECF No. 896 , filed by Defendant JBS USA, LLC, is granted; The Motion to Withdraw, ECF No. 898 , filed by Plaintiff Nimo Mohamed, is gran ted; All claims asserted by Farah M. Farah; Nimo Mohamed; Farhan Abdi; Rahma Mohamed Abdi; Abdirizaq Abdulle; Said Ali Ahmed; Yasin Ahmed; Yusuf Dulane; Amina Farah; Saynab Farah; Amina Gelle; Abdighani Muse; and Mukhtar Omar, are dismissed, with prejudice; and The Clerk of Court is directed to close this case. Ordered by Chief Judge Laurie Smith Camp. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ABDI MOHAMED, et al.,
MEMORANDUM AND ORDER OF
FARHAN ABDI, et al.,
JBS USA, LLC,
This matter is before the Court on the Motion to Dismiss Pro Se Intervenors for
Failure to Comply with Court Orders, ECF No. 896, filed by Defendant JBS USA, LLC
(“JBS”). Also before the Court is the Motion to Withdraw, ECF No. 898, filed by Plaintiff
Nimo Mohamed. For the reasons stated below, the Motions will be granted, and this
case will be closed.
On March 6, 2017, Phillip J. Robertson of CAIR-Chicago, counsel for the Farhan
Abdi, et al., Plaintiff/Intervenors (“CAIR”), filed a Motion to Withdraw, seeking to
withdraw as attorneys for 13 Plaintiff/Intervenors: Farah M. Farah; Nimo Mohamed;
Farhan Abdi; Rahma Mohamed Abdi; Abdirizaq Abdulle; Said Ali Ahmed; Yasin Ahmed;
Yusuf Dulane; Amina Farah; Saynab Farah; Amina Gelle; Abdighani Muse; and Mukhtar
Omar (collectively the “Plaintiff-Intervenors”). ECF No. 893. CAIR noted that it had
attempted to contact the Plaintiff-Intervenors for several months but had not been able
to communicate with them. ECF No. 893, Page ID 17469.
Mr. Robertson and CAIR were granted leave to withdraw as counsel for the
Plaintiff-Intervenors. ECF No. 894. The Court ordered CAIR to serve copies of the
Court’s Order immediately on each of the 13 Plaintiff-Intervenors. Id., Page ID 17475.
The Court also directed that CAIR file a proof of service with the Court, showing
compliance with the Order and listing the names and addresses of the persons to whom
the notice was sent. Id., Page ID 17475-76.
On March 14, 2017, CAIR-Chicago filed its Proof of Service, listing the 13
Plaintiff-Intervenors who had been served, via U.S. Certified Mail, with the Court’s Order
of March 7, 2017. ECF No. 895. Upon the filing of this Proof of Service, the PlaintiffIntervenors were deemed to be proceeding pro se. See ECF No. 894, Page ID 17475.
In the absence of substitute counsel entering a written appearance, each PlaintiffIntervenor was directed to file a written notice with the Clerk of the Court of his/her
current address and telephone number within five business days of being served with
the Order. Id., Page ID 17475. Thus, on or before March 22, 2017, each of the 13
Plaintiff-Intervenors was required to file a written notice with the Clerk of his/her current
address and telephone number.
On March 31, 2017, JBS filed its Motion to Dismiss the Plaintiff-Intervenors. On
April 5, 2017, Plaintiff-Intervenor Nimo Abdirizak Mohamed filed a document styled as a
Request to Withdraw, indicating that she wished to remove her name from the lawsuit.
ECF No. 898, Page ID 17491. As of the date of this Memorandum and Order, no other
Plaintiff-Intervenor has filed written notice, nor has any party objected to JBS’s Motion to
1. Dismissal of the 13 Remaining Plaintiff-Intervenors
Plaintiff-Intervenor Nimo Mohamed was the only remaining Plaintiff-Intervenor to
file a response to the Court’s orders. The Court deems the document filed ECF No. 898
as a plaintiff’s motion to dismiss, under Federal Rule of Civil Procedure 41(a)(2). The
Court finds that the motion should be granted, and the above-captioned action should
be dismissed with prejudice on that basis as to Plaintiff-Intervenor Nimo Mohamed.
As to the other Plaintiff-Intervenors, the Court will dismiss their claims for failure
to comply with the Court’s orders. Federal Rule of Civil Procedure 41(b) permits a
defendant to move to dismiss any claims asserted against it by a plaintiff who “fails to
prosecute or to comply with these rules or a court order . . . .” Similarly, NECivR 41.2
provides, “[a]t any time, a case not being prosecuted with reasonable diligence may be
dismissed for lack of prosecution.” Here, the failure of the other Plaintiff-Intervenors to
comply with the Court’s Amended Order, ECF No. 894, is grounds for dismissal of their
remaining claims. See, e.g., Aziz v. Wright, 34 F.3d 587, 589 (8th Cir. 1994) (“An action
may be dismissed pursuant to Rule 41(b) if a plaintiff has failed to comply with any order
of the court”); Henderson v. Renaissance Grand Hotel, 267 Fed. Appx. 496 (8th Cir
2008) (affirming dismissal of plaintiff’s Title VII action for failure to prosecute after
finding that plaintiff failed to comply with court orders in a timely manner).
Dismissal for failure to comply with a court order is appropriate regardless of
whether the plaintiff is represented by counsel. See, e.g., Brantley v. BNSF Ry. Co., No.
4:12CV3215, 2014 WL 840641, *3 (D. Neb. March 4, 2014) (dismissing pro se litigant’s
case for failing to comply with court’s discovery orders); Dahl v. Kanawha Inv. Holding
Co., 161 F.R.D. 673, 678 (N.D. Iowa 1995) (“Pro se litigants are not excused from
complying with court orders or substantive and procedural law”).
Where the Court
orders a pro se plaintiff to file an update regarding his “intention to continue prosecution
of his claims,” failure to file such an update “or failure to do so in a timely manner will be
deemed failure to prosecute . . . and may be deemed willful disobedience of a court
order, resulting in dismissal . . . pursuant to Fed. R. Civ. P. 41(b).” Hancock v.
Thalacker, 933 F. Supp. 1449, 1461 (N.D. Iowa 1996).
Although a “pro se litigant
should receive meaningful notice of what is expected of him,” he is required to, at the
very least, attempt in good faith to comply with the Court’s orders. Burgs v. Sissel, 745
F.2d 526, 528 (8th Cir. 1984) (dismissing pro se plaintiff’s case pursuant to Rule 41(b)
after he failed to comply with the court’s pretrial orders to clarify his claims). Because
the 13 Plaintiff-Intervenors have not complied with the Court’s Order, pursuant to Fed.
R. Civ. P. 41(b) and NECivR 41.2, their remaining claims will be dismissed, with
2. Disposition of Case
Plaintiffs remaining at the Phase II stage of proceedings included the EEOC and
several individual Plaintiff-Intervenors. In Phase II, the Plaintiff-Intervenors were divided
into three categories, based on their representation by different counsel, or no counsel.
The first category consisted of Plaintiff-Intervenors Abdi Mohamed, et al. (“First
Intervenors”). The second category consisted of Plaintiff-Intervenors Farhan Abdi, et al.
(“Second Intervenors”). The third category consisted of Plaintiff-Intervenors no longer
represented by counsel (“Pro Se Intervenors”). On September 21, 2016, the Court
dismissed, with prejudice, all claims asserted by the EEOC and First Intervenors, and
entered judgment in favor of JBS on the claims asserted by those parties. Thus, only
claims asserted by the Second Intervenors and Pro Se Intervenors remained.
Over the course of several months, the Court has dismissed the claims of several
Plaintiff-Intervenors who were non-responsive to their retained counsel and the Court.
See e.g., ECF Nos. 861, 889. Upon the filing of this Memorandum and Order, the claims
of the remaining Plaintiff-Intervenors have all been dismissed. Accordingly, this case
may be closed.
IT IS ORDERED:
The Motion to Dismiss Pro Se Intervenors for Failure to Comply with Court
Orders, ECF No. 896, filed by Defendant JBS USA, LLC, is granted;
The Motion to Withdraw, ECF No. 898, filed by Plaintiff Nimo Mohamed, is
All claims asserted by Farah M. Farah; Nimo Mohamed; Farhan Abdi;
Rahma Mohamed Abdi; Abdirizaq Abdulle; Said Ali Ahmed; Yasin Ahmed;
Yusuf Dulane; Amina Farah; Saynab Farah; Amina Gelle; Abdighani
Muse; and Mukhtar Omar, are dismissed, with prejudice; and
The Clerk of Court is directed to close this case.
Dated this 27th day of April, 2017.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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