Rico v. JBS USA, LLC

Filing 27

MEMORANDUM AND ORDER adopting 25 the Findings and Recommendation of the magistrate judge; and the defendant's Motions for Sanctions and Expenses 23 is granted in part and denied in part as set forth in the F&R. The plaintiff's complain t is dismissed, without prejudice, pursuant to Fed. R. Civ. P. 37 and NECivR 41.2. The defendant's motion is denied in all other respects subject to the condition the plaintiff must pay the attorney fees and costs reasonably incurred by the defendant related to discovery before the plaintiff is allowed to continue this lawsuit or pursue a new lawsuit against the defendant. Ordered by Judge Joseph F. Bataillon. (JSF) Modified on 4/28/2014 to indicate copy mailed to pro se party (JSF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARIA RICO,
8:13CV58
Plaintiff,
vs.

MEMORANDUM AND ORDER

JBS USA, LLC,
Defendant.

Before the court is the Findings and Recommendation (“F&R”) of United States
Magistrate Judge Thomas D. Thalken, Filing No. 25. No objection has been filed to the
F&R. Pursuant to NECivR 41.2, the court has conducted a de novo review of the record
and adopts the F&R in its entirety.
Plaintiff filed this lawsuit against the defendant in the District Court of Hall
County, Nebraska. Defendant removed the action to federal court. See Filing No. 1-1.
The court entered an initial progression order, Filing No. 9, and gave the parties until
May 17, 2013, to exchange mandatory initial discovery. On July 23, 2013, defendant
served plaintiff with interrogatories and requests for production of documents.

On

September 4, 2013, counsel for the defendant wrote a letter to plaintiff’s counsel asking
for the discovery. Filing No. 13-3. Counsel also talked with the plaintiff’s counsel by
phone concerning the discovery. On September 25, 2013, defendant filed a motion to
compel the discovery, and then plaintiff’s attorney filed a motion to withdraw. Plaintiff
did not respond to the motion to withdraw, but counsel for plaintiff represented that his
client instructed him to “drop the case.” Filing No. 14. The court granted the motion to
withdraw, and the plaintiff then proceeded pro se. The court thereafter granted

defendant’s motion to compel and show cause by February 21, 2014, why defendant
should not be awarded reasonable costs and attorney fees incurred in bringing the
motion to compel.

The court further warned that failure to comply might result in

monetary sanctions and dismissal of the case. The plaintiff did not respond.
The magistrate judge determined that under the circumstances this case should
be dismissed. This court agrees. See Hunt v. City of Minneapolis, 203 F.3d 524, 52728 (8th Cir. 2000) (no error in dismissing action where plaintiff “engaged in a persistent
pattern of intentional delay by willfully disregarding court orders and violating the
Federal Rules.”).
The magistrate judge further recommended that sanctions and expenses not be
imposed for failure to comply with discovery, unless plaintiff chooses to continue this
lawsuit or to file another lawsuit against this defendant. See Fed. R. Civ. P. 37 and
NECivR 41.2. The court finds this recommendation is both fair and reasonable in view
of the circumstances.
THEREFORE, IT IS HEREBY ORDERED:
1. The F&R of the magistrate judge, Filing No. 25, is adopted in its entirety; and
the defendant’s Motion for Sanctions and Expenses, Filing No. 23, is granted in part and
denied in part as set forth in the F&R.
2. The plaintiff’s complaint is dismissed, without prejudice, pursuant to Fed. R.
Civ. P. 37 and NECivR 41.2.
3. The defendant’s motion is denied in all other respects subject to the condition
the plaintiff must pay the attorney fees and costs reasonably incurred by the defendant

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related to discovery before the plaintiff is allowed to continue this lawsuit or pursue a
new lawsuit against the defendant.
Dated this 28th day of April, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

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