Ambrocio Olivera v. Steve Bauer Construction LLC

Filing 12

REPORT AND RECOMMENDATION that plaintiff's case be Dismissed in its entirety for want of prosecution and for failure to obey an Order of the Court. Objections to R&R due by 8/5/2013. Signed by Magistrate Judge Karen L. Litkovitz on 7/18/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
EUSEBIO AMBROCIO OLIVERA,
Plaintiff
vs
STEVE BAUER CONSTRUCTION LLC,
Defendants.

Case No. 1:12-cv-750
Spiegel, J.
Litkovitz, M.J.

REPORT AND
RECOMMENDATION

Plaintiff, proceeding pro se, initiated this action in September 20 12 against
defendant Steve Bauer Construction LLC pursuant to the Fair Labor Standards Act, 29
U.S.C. Section 201, for non payment of overtime wages. Plaintiffs complaint was
entered upon the Court's docket on October 3, 2012. (Doc. 3). Defendant was served
with a summons and a copy of the complaint on October 17, 2012. (Doc. 5).
Accordingly, defendant's answer was due on or about November 7, 2012. See Fed. R.
Civ. P. 12(a)(l)(A). To date, defendant has failed to move, answer, or otherwise plead in
response to the complaint. On AprilS, 2013, the Clerk of Court entered a default as to
defendant Steve Bauer Construction LLC pursuant to plaintiffs application for default.
(Doc. 9).
On June 21, 2013, plaintiff was ordered to either file a motion for default judgment
against defendant or show cause why this action should not be dismissed for lack of
prosecution. (Doc. 10). The Court's Order also informed plaintiff that failure to comply
with terms of the order shall result in a report and recommendation to the District Court

that this action be dismissed. (Doc. 10). On July 17, 2013, the Order of the Court sent
via certified mail to plaintiff was returned to the Clerk of Court by the U.S. Postal Service
marked "Unclaimed- Return to Sender." (Doc. 11). To date, plaintiff has failed to
respond to the Court's Orders.
Plaintiffs failure to prosecute this matter and to obey an Order of the Court
warrants dismissal of this case pursuant to Fed. R. Civ. P. 41(b). See Jourdan v. Jabe,
951 F.2d 108, 109-10 (6th Cir. 1991). District courts have the power to sua sponte
dismiss civil actions for want of prosecution to "manage their own affairs so as to achieve
the orderly and expeditious disposition of cases." Link v. Wabash R.R., 370 U.S. 626,
630-631 ( 1962). See also Jourdan, 951 F .2d at 109. Though plaintiff is proceeding
pro se, as stated by the Supreme Court, "we have never suggested that procedural rules in
ordinary civil litigation should be interpreted so as to excuse mistakes by those who
proceed without counsel." McNeil v. United States, 508 U.S. 106, 113 (1993).
IT IS THEREFORE RECOMMENDED THAT plaintiffs case be DISMISSED

in its entirety for want of prosecution and for failure to obey an Order of the Court.
IT SO ORDERED.

Date:

zd~./;3

~~

Karen L. Litkovitz

United States Magistrate Judge

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
EUSEBIO AMBROCIO OLIVERA,

Case No. 1:12-cv-750

Plaintiff

Beckwith, J.

vs

Litkovitz, M.J.

STEVE BAUER CONSTRUCTION LLC,
Defendants.

NOTICE TO THE PARTIES REGARDING FILING OF OBJECTIONS TO THIS R&R
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to these proposed findings and recommendations within FOURTEEN DAYS after being served
with this Report and Recommendation ("R&R"). Pursuant to Fed. R. Civ. P. 6(e), this period is
automatically extended to seventeen days (excluding intervening Saturdays, Sundays, and legal
holidays) because this R&R is being served by mail. That period may be extended further by the
Court on timely motion for an extension. Such objections shall specify the portions of the R&R
objected to, and shall be accompanied by a memorandum of law in support ofthe objections. If
the R&R is based, in whole or in part, upon matters occurring of record at an oral hearing, the
objecting party shall promptly arrange for the transcription ofthe record, or such portions of it as
all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
Judge otherwise directs. A party may respond to another party's objections within FOURTEEN
DAYS after being served with a copy thereof. Failure to make objections in accordance with this

procedure may forfeit rights on appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir.
1981); Thomas v. Arn, 474 U.S. 140 (1985).

SENDER:

COMPL~'ft rt//~ ~(~fj~AJ

• Complete 1tems 1 , 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
• Print your name and address on the reverse
so that we can return the card to you.
• Attach this card to the back of the mailpiece,
or on the front if space permits.

~gent

0 Addressee

X
B. Received by (Printed Name)

-\C. Date of Delivery

D. Is delivery address different from item 1?
If YES, enter delivery address below:

0
0

Yes
No

1. Article Addressed to:

'tv.s~~; 9 A"'brt7c.; <7 6 Lv~t"'te

I..S '2.. 'vJ. 1 J S+.

Ca' 7"\.~; I

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4 $ 2. l t?

3. S~ceType
~rtified Mail

0

0

Registered
Insured Mail

0
0

Express Mail
Retum Receipt for Merchandise

oc.o.o.

4. Restricted Delivery? (Extra Fee)

1
2. Article Number

(Transfer from service label)

3811, February 2004

7011 3500 0001 5345 9190

DYes