Johnson v. Tamarin Lodging, LLC

Filing 38

MEMORANDUM OPINION that the Court finds that defendant's motion should be granted. The Court will grant defendant's motion to dismiss with prejudice. Plaintiff has failed to respond to defendant's discovery requests, timely comply with Magistrate Judge Gossett's March 19, 2016, order, respond to defendant's present motion, and has failed to pursue her claim in any way. Accordingly, defendant's motion to dismiss with prejudice will be granted. Given the actions of the plaintiff, the Court will likewise grant defendant's request that the Court award defendant "its reasonable expenses and attorney's fees incurred in bringing the February 15, 2016, Motion to Compel and the present [m]otion." The Court is without any evidence regarding the amount of defendant's reasonable expenses and attorney's fees. Accordingly, defendant is hereby instructed to submit to the Court a proposal of its reasonable expenses and fees within fourteen days of date of this order. Plaintiff shall thereafter have fourteen days to respond to defendant's proposal in accordance with NECivR 7.1(b)(1)(B). No additional sanctions will be imposed. A separate order will be entered herein in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
NANCY JOHNSON,

)
)
Plaintiff,
)
)
v.
)
)
TAMARIN LODGING, LLC,
)
)
Defendant.
)
______________________________)

8:15CV174

MEMORANDUM OPINION

This matter is before the Court on the defendant,
Tamarin Lodging, LLC’s (“defendant” or “Tamarin”) motion to
dismiss and for sanctions (Filing No. 30).

The defendant

submitted a brief in support of its motion (Filing No. 31).

The

plaintiff, Nancy Johnson (“plaintiff” or “Johnson”) has failed to
timely submit a brief in opposition to defendant’s motion or
otherwise respond.

See NECivR 7.1(b)(1)(B) (requiring that “[a]

brief opposing a motion to dismiss . . . must be filed and served
within 21 days after the motion and supporting brief are filed
and served . . . .”).

After review of the motion, the

defendant’s brief, and applicable law, the Court finds as
follows.
BACKGROUND
Plaintiff filed the instant action on February 24,
2015, in the Nebraska District Court of Lancaster County (Filing
No. 1-1 at 1).

Defendant timely removed the case to this Court

on May 20, 2015 (Filing No. 1).

On December 23, 2015, after some

initial discovery, plaintiff’s counsel sought to withdraw because
“communication between the plaintiff and counsel ha[d] failed.”
(Filing No. 24 at 1).

On December 29, 2015, Magistrate Judge

Gossett granted plaintiff’s counsel’s motion, ordered Ms. Neary
to immediately serve copies of the court’s order on plaintiff and
thereafter file a proof of service to show compliance thereto
(Filing No. 25 at 1).

Magistrate Judge Gossett also ordered that

plaintiff “w[ould] be deemed to be proceeding pro se . . . unless
substitute counsel . . . entered a written appearance on her
behalf.”

(Id.)

Magistrate Judge Gossett instructed plaintiff to

“comply with all orders of th[e] Court, the Federal Rules of
Civil Procedure, and the Local Rules of Practice.”

In addition,

Magistrate Judge Gossett warned plaintiff that “[f]ailure to
comply with [the above mentioned] requirements may result in the
imposition of sanctions, including payment of costs and
attorney’s fees and/or the entry of default.”

(Id.)

On February 5, 2016, defendant filed a motion to compel
discovery and to extend the remaining deadlines in the
progression order (Filing No. 21).

(Filing No. 27).

Magistrate

Judge Gossett granted defendant’s motion to compel on February
17, 2016, and gave plaintiff until March 19, 2016, to respond to
defendant’s discovery requests (Filing No. 29).

Plaintiff’s

communications with all concerned with this case have completely
ceased.

See Filing No. 31-1 at 1-2.
Following plaintiff’s noncompliance with Magistrate

Judge Gossett’s March 19, 2016, order, defendant filed the
instant motion to dismiss and for sanctions (Filing No. 30).

On

May 11, 2016, this case was reassigned to the undersigned for
disposition (Filing No. 32).
LAW
Federal Rule of Civil Procedure 37(b)(2)(C) permits a
district court’s dismissal of an action when a party fails to
comply with a discovery order.

“‘Pro se litigants are not

excused from complying with court orders.’”

Meints v. Dewitt, 68

F.3d 478, 478 (8th Cir. 1995) (per curium) (unpublished
disposition) (quoting Farnsworth v. City of Kansas City, 863 F.2d
33, 34 (8th Cir. 1998) (per curium), cert. denied, 493 U.S. 820
(1989)).
DISCUSSION
The Court finds that defendant’s motion should be
granted.
prejudice.

The Court will grant defendant’s motion to dismiss with
Plaintiff has failed to respond to defendant’s

discovery requests, timely comply with Magistrate Judge Gossett’s
March 19, 2016, order, respond to defendant’s present motion, and
has failed to pursue her claim in any way.

Accordingly,

defendant’s motion to dismiss with prejudice will be granted.

Given the actions of the plaintiff, the Court will
likewise grant defendant’s request that the Court award defendant
“its reasonable expenses and attorney’s fees incurred in bringing
the February 15, 2016, Motion to Compel and the present
[m]otion.”

The Court is without any evidence regarding the

amount of defendant’s reasonable expenses and attorney’s fees.
Accordingly, defendant is hereby instructed to submit to the
Court a proposal of its reasonable expenses and fees within
fourteen days of date of this order.

Plaintiff shall thereafter

have fourteen days to respond to defendant’s proposal in
accordance with NECivR 7.1(b)(1)(B).
will be imposed.

No additional sanctions

A separate order will be entered herein in

accordance with this memorandum opinion.
DATED this 15th day of July, 2016.
BY THE COURT:
/s/ Lyle E. Strom
______________________________
LYLE E. STROM, Senior Judge
United States District Court