Mills v. DDSP et al
MEMORANDUM (eo, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DDSP, et al,
Hon. John E. Jones III
Hon. Martin C. Carlson
October 18, 2011
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation
(“R&R”) of Magistrate Judge Martin C. Carlson (Doc. 7), filed on September 21,
2011, which recommends that this case be dismissed based on Plaintiff’s failure to
prosecute this case. No objections to the R&R have been filed.1 For the reasons
set forth below, the Court will adopt the R&R and dismiss this action.
STANDARD OF REVIEW
When, as here, no objections are made to a magistrate judge’s report and
recommendation, the district court is not statutorily required to review the report
Objections were due by October 11, 2011.
before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). According to the
Third Circuit, however, “the better practice is to afford some level of review to
dispositive legal issues raised by the report.” Henderson v. Carlson, 812 F.2d 874,
878 (3d. Cir. 1987). “[T]he court need only satisfy itself that there is no clear error
on the face of the record in order to accept recommendations.” Fed. R. Civ. P.
72(b), advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating
“the failure of a party to object to a magistrate’s legal conclusions may result in the
loss of the right to de novo review in the district court”); Tice v. Wilson, 425 F.
Supp. 2d 676, 680 (W.D. Pa. 2006); Cruz v. Chater, 990 F. Supp. 375-78 (M.D.
Pa. 1998); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998). The Court’s
examination of this case confirms the Magistrate Judge’s determinations.
Plaintiff, who is proceeding pro se, commenced this action by filing a
praecipe for a summons in the Court of Common Pleas of Dauphin County on
January 9, 2007. The praecipe for summons is obviously not a complaint, and thus
contained no factual averments or intelligible claims. It simply identified the
parties that Mills intended to sue, naming Defense Depot, Susquehanna,
Pennsylvania (DDSP), a federal agency with the Department of Defense, James
Naber, the former Commander of DDSP, and Paragon Technology Inc. (a/k/a SI
Handling System Technology, Inc.) as Defendants. After this filing, Plaintiff did
nothing with regards to the case for three and one-half years, until October 2010,
when the county court notified Mills that it was proposing the termination of the
case. In response, Mills voiced an intention to follow through with the case, but
took no steps to proceed with the lawsuit.
In July of 2011, the United States first learned of this pending county matter
when it received a notice from county court. The United States then removed this
case to federal court, and filed a motion for a more definite statement under Fed. R.
Civ. P. 12(e). On August 10, 2011, Magistrate Judge Carlson granted the United
States’ motion and directed Mills that “[t]he time has now come for the plaintiff to
move beyond labels and assert facts which articulate a legal claim.” Mills was
instructed that “[o]n or before September 1, 2011, [he] shall file a complaint in this
case and serve the complaint upon the defendants.” (Doc. 5). Magistrate Judge
Carlson also warned Mills that a consequence of failing to timely comply with
orders may result in dismissal of the case pursuant to Fed. R. Civ. P. 41. Despite
this clear admonition, Mills allowed the deadline to lapse, resulting in the instant
R&R issued by Magistrate Judge Carlson, recommending dismissal of the action
pursuant to Fed. R. Civ. P. 41(b). That rule provides “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to
dismiss the action or any claim against it.” As correctly noted by the Magistrate
Judge, the Third Circuit has long held that Rule 41(b) does not prohibit the sua
sponte dismissal of actions by the Court based on a plaintiff’s failure to prosecute
the action. Kenney v. Cal. Tanker Co., 381 F. 2d 775, 777 (3d Cir. 1967).
Magistrate Judge Carlson also undertook an analysis of the Poulis factors and
determined that dismissal is the favored sanction in this case. See Poulis v. State
Farm Fire and Cas. Co., 747 F. 2d 863, 868 (3d Cir. 1984).
As we have already mentioned, the Plaintiff has not filed objections to this
R&R. Because we agree with the sound reasoning that led the Magistrate Judge to
the conclusions in the thorough R&R, we will adopt the R&R in its entirety. At
bottom, Plaintiff has evinced a settled purpose to abandon his case via an utter
failure to prosecute. He has done this in the face of abundant warnings and
courtesy. With a mind towards conserving judicial resources, we will not futher
rehash the reasoning of the Magistrate Judge; rather, we will attach a copy of the
R&R to this documents, as it accurately reflects our consideration and resolution of
the case sub judice. An appropriate Order shall issue.
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