Zheludova v. Delta Airlines

Filing 48

ORDER that plaintiff's motions 42 & 45 for extension of time are Stricken from the record. Plaintiff shall respond to defendant's discovery requests within (7) days of the filing date of this Order. Plaintiff shall file a memorandum i n response to defendant's 46 MOTION to Dismiss on or before 2/11/2013. Failure to file a memorandum in response to the motion to dismiss by that date will result in dismissal of this case pursuant to FRCP 41(b). Signed by Magistrate Judge Karen L. Litkovitz on 1/24/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

TATIANA ZHELUDOVA,
Plaintiff,

Civil Action No. 1:11-cv-355
Litkovitz, M.J.

vs.
DELTA AIRLINES,
Defendant.

ORDER

This matter is before the Court on plaintiffs motion for extension of time to complete
discovery. (Doc. 45). Plaintiff asserts that she is unable to respond to defendant's discovery
requests because she is not in "good physical condition" at this time.
Plaintiff instituted this lawsuit by filing a complaint against defendant in state court on
May 10,2011. (Doc. 2). Defendant removed the case to this court on June 2, 2011. (Doc. 1).
Plaintiff was originally represented by counsel, but her attorney withdrew as counsel in
November 2011. (Doc. 16). Plaintiff retained new counsel, who withdrew in August 2012.
(Doc. 32). Plaintiff has proceeded pro se in this matter since that time.
Plaintiff filed a motion for extension oftime on December 10, 2012. (Doc. 42). The
motion failed to include a certificate of service in accordance with Fed. R. Civ. P. 5 showing that
the document was served on defendant. The Court therefore ordered plaintiff to serve a copy of
the motion on defendant and show proof of service within 10 days. The Court informed plaintiff
that if she failed to comply with the Order, the motion would be stricken from the docket ofthe
Court.
Plaintiff subsequently filed a second motion for extension oftime on January 17, 2013.
(Doc. 45). That motion likewise fails to include a certificate of service in accordance with Fed.
R. Civ. P. 5 showing the document was served on defendant. Plaintiff has attached a certified

mail receipt to the motion. The receipt is postmarked January 16, 2013, but there is no
information filled in on the receipt. Accordingly, because plaintiff has failed to show proof of
service of her motions for extension of time, the motions shall be stricken from the docket of the
Court.
Defendant has filed a motion to dismiss this lawsuit pursuant to Fed. R. Civ. P. 41(b)
based on plaintiffs failure to prosecute the case. (Doc. 46). In support of the motion, defendant
states it served discovery requests on plaintiff on March 14, 2012, but plaintiff has not responded
to those requests to date. (!d., Exh. A, Affidavit of Matthew Stubbs,~ 2). This is despite the fact
that defendant filed a motion to compel the discovery responses on June 20, 2012 (Doc. 28), and
the Court granted numerous extensions of time for plaintiff to respond to the motion to compel
and provide the requested discovery. (Doc. 31; 8/16/12 Docket Entry; Doc. 41 ). Defendant
further states that plaintiff failed to attend an independent medical examination scheduled for
January 11, 2013. (Doc. 46, Exh. A, Stubbs Aff., ~ 3). In addition, defendant asserts that
plaintiff failed to identify any witnesses by January 11, 2013, which was the deadline imposed
by the Court's revised Calendar Order issued on November 9, 2012. (See Doc. 40).
Because the record shows that plaintiff has failed to respond to defendant's discovery
requests and to comply with the Court's Orders, plaintiff is advised that her failure to timely
respond to defendant's motion to dismiss will result in dismissal of this case pursuant to Fed. R.
Civ. P. 41 (b) for failure to prosecute. 1 District courts have this power to dismiss civil actions for
want of prosecution to "manage their own affairs so as to achieve the orderly and expeditious
disposition of cases." Linkv. Wabash R.R., 370 U.S. 626,630-631 (1962). See also Jourdan v.
Jabe, 951 F.2d 108, 109-10 (6th Cir. 1991).

1

A Notice was also issued to plaintiff on January 22, 2013, advising her that defendant had filed a motion to dismiss
and that failure to file a memorandum in response to the motion within 21 days from the date of service attached to
the motion may warrant dismissal of the case pursuant to Fed. R. Civ. P. 4l(b) for failure to prosecute. (Doc. 47).

2

IT IS THEREFORE ORDERED THAT:

1. Plaintiffs motions for extension of time (Docs. 42, 45) are STRICKEN from the record.
2. Plaintiff shall respond to defendant's discovery requests within seven (7) days of the filing
date of this Order.
3. Plaintiff shall file a memorandum in response to defendant's motion to dismiss (Doc. 46) on
or before February 11, 2013. Failure to file a memorandum in response to the motion to
dismiss by that date will result in dismissal of this case pursuant to Fed. R. Civ. P. 41(b).
IT IS SO ORDERED.

~K~

Date:

Karen L. Litkovitz
United States Magistrate Judge

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