Alphin v. Goosmann Law Firm et al

Filing 18

OPINION AND ORDER granting 13 Motion to Dismiss. Signed by U.S. District Judge Roberto A. Lange on 10/15/19. (SKK) Modified on 10/15/2019. Sent to Arthur B. Alphin with Non Prisoner Appeal Packet via USPS (SKK).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

ARTHUR B. ALPHIN, and ESTATE OF
ELAINE MARIE ALPHIN,

4:I8-CV-04070-RAL

Plaintiffs,
OPINION AND ORDER GRANTING
DEFENDANTS' MOTION TO DISMISS
vs.

GOOSMANN LAW FIRM, and
MARIE H. RUETTGERS,
Defendants.

Plaintiffs Arthur B. Alphin and Estate ofElaine Marie Alphin filed this action in state court
alleging legal malpractice against Goosmann Law Firm and Marie H. Ruettgers. Docs. 1-1, 1-2.

Plaintiff Arthur Alphin is proceeding pro se, both for himselfand as the representative ofthe Estate

of Elaine Marie Alphin. Based on diversity of citizenship under 28 U.S.C. § 1332, Defendants
removed the action to this Court pursuant to 28 U.S.C. §§ 1441(a) and 1446. Doc. I. After

Defendants answered the complaint on June 27, 2018, this Court issued an Order for Discovery

Report and Scheduling Information, on June 28, 2018. Doc. 6. Alphin filed a motion on July 30,
2018, seeking a 30-day continuance in the deadline for a Rule 26(f) meeting. Doc. 7. This Court
entered an order granting that motion. Doc. 9, enlarging the time for the discovery report and

scheduling information to August 24,2018, and requiring that ifthe parties failed to have the Rule
26(f) meeting by that date, then they should submit separate responses to the Court by September
7, 2018. Defendants complied with the Court's order by submitting their discovery report on

I

September 4, 2018,Doc. 10, and this Court then entered a Rule 16 Scheduling Order on September
18, 2018. Doc. 11. Neither Alphin nor anyone on behalf ofthe Plaintiffs have filed any further

pleadings since the July 31, 2018 motion seeking a continuance in the time for the Rule 26(f)
meeting.

Nearly one year after this Court entered its scheduling order. Defendants filed a motion to
dismiss based on Rule 41(b) ofthe Federal Rules of Civil Procedure. Doc. 13. With that motion,
the Defendants filed an affidavit. Doc. 14, and a memorandum of law. Doc. 15. In the affidavit,

defense counsel explains her efforts to schedule a Rule 26(f) meeting with Alphin, how he initially
asked for additional time to get an attorney, how defense counsel chose not to object to Alphin's

request for a continuance in the time for the Rule 26(f) meeting, and how Alphin in August of
2018 did not respond to multiple efforts from defense counsel to conduct a Rule 26(f) meeting or
agree to a proposed discovery plan. Doc. 14 at

3-7. Defense counsel in the affidavit explains

how the Defendants served their pre-discovery disclosure on Alphin on November 30, 2018,

consistent with the discovery order, including a USB thumb drive containing 9,237 pages of

documents potentially relevant to the claims and defenses, and producing 3,027 pages constituting
the case files in the cases specifically mentioned in Plaintiffs' complaint. That is, the Defendants

voluntarily produced 12,264 pages of documents at the end ofNovember of2018, organizing and
sorting them by date and paginating the electronic material. Doc. 14 at 10. Alphin, despite
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reminders from defense counsel, never provided any pre-discovery disclosures. Doc. 14 at

11-

12.

Despite this being an attorney malpractice case, Alphin has made no disclosure of any
expert witness, despite the January 18, 2019 deadline to do so having passed. Doc. 14 at 12.
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Rather, Alphin has ignored communications from defense counsel and not responded to those

communications. Doc. 14 at

11-15. This was not a result ofa bad address, as none ofthe letters

sent by defense counsel to Alphin were returned as undeliverable and none ofthe emails to Alphin
by defense counsel were rejected. Doc. 14 at ^ 15. At this point, all deadlines contained in this
Court's Rule 16 Scheduling Order have elapsed, with the discovery deadline having run on

September 20,2019. Doc. 11. Alphin has not participated in discovery, and indeed did not comply
with the pre-discovery disclosure requirement in this Court's Rule 16 Scheduling Order. Plaintiffs
have filed no response to the motion to dismiss, affidavit, and brief within the twenty-one days set
by this Court's Local Rules to do so. D.S.D. Civ. L.R. 7.I.B.
Although this Court could have already dismissed this case based on Rule 41(b) of the
Federal Rules ofCivil Procedure, this Court chose to enter an order regarding Defendants' motion
to dismiss, Doc. 16, on September 26,2019, which ordered "that ifPlaintiffs do not file a response

brief within 14 calendar days ofthis Order, the motion to dismiss will be granted." Plaintiffs did

not file a response brief within 14 days of the order. However, on October 7, 2019, the clerk of
court's letter to Alphin was returned as undeliverable. Doc. 17. Based on a phone call received
from one ofthe attorneys for Defendants, the clerk ofcourt then mailed the order anew to the more
current address that defense counsel had for Alphin.

Rule 41(b) ofthe Federal Rules of Civil Procedure provides:
If 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. Unless the
dismissal order states otherwise, a dismissal under this subdivision (b) and any
dismissal not under this rule—except one for lack ofJurisdiction, improper venue,
or failure to join a party under Rule 19—operates as an adjudication on the merits.

Fed. R. Civ. P. 41(b). The decision whether to dismiss an action based on a plaintiffs failure to

prosecute or comply with a court order or follow the rules is committed to the sound discretion of
the court. Ellefson v. Kenstler. No. Civ. 14-5001-JLV, 2014 WL 4385548, at *2(D.S.D. Sep. 4,

2014); see also Link v. Wabash R.R. Co.. 370 U.S. 626, 630-33 (1962)(finding a district court
may dismiss an action under Rule 41(b) on its own initiative and without advanced notice or
hearing being required). A plaintiff proceeding pro se, of course, still has an obligation to follow
the Federal Rules of Civil Procedure and this Court's Local Rules. Ackra Direct Mkgt. Corp. v.
Fingerhut Corp.. 86 F.3d 852, 856 (8th Cir. 1996); Bovce v. Interbake Foods. Nc. Civ. 09-4138KES, 2011 WL 3843948, at *4 (D.S.D. Aug. 26, 2011). The Order for Discovery Report and
Scheduling Information, Doc. 6, and the Rule 16 Scheduling Order, Doc. 11, are of course orders

entered by this Court and incorporate obligations contained under the Federal Rules of Civil
Procedure in, among other rules. Rule 26. Pro se litigants are equally bound by such rules and
receive the same treatment under the rules as do parties represented by licensed counsel. Lindstedt
V. Citv of Granbv. 238 F.3d 933, 937(8th Cir. 2000)(per curiam). Plaintiffs plainly have failed

to comply with this Court's orders and rules and the Federal Rules of Civil Procedure with regard
to engaging in a Rule 26(f) meeting, providing the initial pre-discovery disclosures, or participating
in discovery in any way. Moreover, Plaintiffs have failed to respond within the twenty-one days
set by Local Rule to the motion to dismiss and, as of yet, have not responded even after the Court's
order dated September 26, 2019, which, in fairness, Alphin might be just receiving as the Court
writes this opinion and order.
There is an added shortcoming in Plaintiffs' case, particularly evident now that all
discovery deadlines under the Rule 16 Scheduling Order have run. Plaintiffs' cause of action is
for legal malpractice. Under South Dakota law, which would govern in this diversity jurisdiction
case where the relationship between the Plaintiffs and the Defendants centered in South Dakota, a

legal malpractice claim most often necessitates an expert opinion that there was legal malpractice.
Zhang V. Rasmus. 932 N.W.2d 153, 162(S.D. 2019).

As stated above, a dismissal under Rule 41(b)is considered an adjudication on the merits,
unless the court specifies otherwise. The ten days from September 26,2019,that the Court granted
in its order regarding motion to dismiss. Doc. 16, have run, but it appears that the clerk of court

sent the order to an outdated address of Alphin. Accordingly, in fairness to Plaintiffs, this Court
will make its dismissal without prejudice to Plaintiffs filing a motion, duly supported by affidavit
and legal argument in a brief, to reconsider the dismissal and reopen the case within twenty-one
days ofthe date ofthis opinion and order. Ifthere is no such motion filed or ruling to the contrary
from the Court, this dismissal shall then be on the merits consistent with Rule 41(b).
Therefore, it is hereby
ORDERED that Defendants' Motion to Dismiss, Doc. 13, is granted, that the dismissal of
the case is without prejudice to Plaintiffs refiling within twenty-one days ofthe date on this opinion
and order a motion to reconsider and reinstate the case duly supported by affidavit and briefs, and
that if no such motion is filed and no order to the contrary is entered by this Court, this dismissal
shall be on the merits consistent with Rule 41(b) ofthe Federal Rules of Civil Procedure.

DATED this

day of October, 2019.
BY THE COURT:

ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE