Sims v. CSX Transportation Inc.

Filing 25

ORDER adopting 23 Report and Recommendations. The Complaint (Dkt. No. 1 ) is DISMISSED in its entirety without prejudice under Rule 41(b) of the Federal Rules of Civil Procedure based on the Plaintiff's failure to prosecute and comply with this Court's orders and local rules of practice. Signed by Judge Brenda K. Sannes on 9/6/17. (Copy served on plaintiff via regular and certified mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
JOSEPH SIMS,
Plaintiff,
v.

1:16-CV-762 (BKS/TWD)

CSX TRANSPORTATION INC.,
Defendant.
________________________________________________
Appearances:
Joseph Sims
Stillwater, NY 12170
Plaintiff Pro Se
Scott A. Barbour, Esq.
McNamee, Lochner Law Firm
677 Broadway
Albany, NY 12207
Attorney for Defendant
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
On June 27, 2006, Plaintiff Joseph Sims commenced this action under the Federal
Employers’ Liability Act, 45 U.S.C. § 51, et seq., the Federal Safety Appliances Act, 49 U.S.C. §
20301, et seq., and the Locomotive Inspection Act, 49 U.S.C. § 20701, et seq., seeking to recover
damages for personal injuries incurred during his employment as an engineer. Dkt. No. 1. On
January 31, 2017, Plaintiff’s counsel filed a motion to withdraw as counsel due to their inability
to contact Plaintiff. Dkt. No. 18. United States Magistrate Judge Thérèse Wiley Dancks granted
that motion in a text Order on April 11, 2017, and directed Plaintiff to notify the Court within
thirty days of any new counsel retained. Dkt. No. 19. The text Order was returned to the Court

as undeliverable on April 20, 2017, and Plaintiff never complied with the Order. On August 3,
2017, Magistrate Judge Dancks issued an Order and Report-Recommendation recommending
that this action be dismissed without prejudice under Fed. R. Civ. P. 41(b), and N.D.N.Y. L.R.
41(b). Dkt. No. 23. Magistrate Judge Dancks advised the parties that under 28 U.S.C. §
636(b)(1), they had fourteen days within which to file written objections to the Report, and that
the failure to object to the Report within fourteen days would preclude appellate review. Dkt.
No. 23, p.10. No objections to the Report-Recommendation have been filed; the copy mailed to
Plaintiff was returned to the Court as undeliverable on August 17, 2017. Dkt. No. 24.
As no objections to the Report-Recommendation have been filed, and the time for filing
objections has expired, the Court reviews the Report-Recommendation for clear error. See
Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory
committee’s note to 1983 amendment. Having reviewed the Report-Recommendation for clear
error and found none, the Court adopts it in its entirety.
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 23) is ADOPTED in its
entirety; and it is further
ORDERED that the Complaint (Dkt. No. 1) is DISMISSED in its entirety without
prejudice under Rule 41(b) of the Federal Rules of Civil Procedure based on the Plaintiff’s
failure to prosecute and comply with this Court’s orders and local rules of practice; and it is
further

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ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with
the Local Rules.
IT IS SO ORDERED.
Dated: September 6, 2017

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