Courts v. Walden Security

Filing 36

REPORT AND RECOMMENDATION: For the reasons stated above, the undersigned Magistrate Judge RECOMMENDS that defendant's motion to dismiss be DENIED as premature. Signed by Magistrate Judge John S. Bryant on 9/19/11. (xc:Pro se party by regular and certified mail.)(tmw)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
RONALD COURTS,

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Plaintiff,
v.
WALDEN SECURITY,
Defendant.

NO. 3:10-1157
Judge Trauger/Bryant

TO: The Honorable Aleta A. Trauger
REPORT AND RECOMMENDATION
Defendant Walden Security has filed its amended motion to
dismiss for plaintiff’s failure to prosecute and failure to comply
with the Federal Rules of Civil Procedure and orders of the Court
(Docket Entry No. 33).

As grounds for its motion, defendant cites

docket entries indicating that mail addressed to plaintiff by the
Clerk has been returned by the Post Office as “unclaimed.”

In

addition, defendant asserts that plaintiff has failed to serve
initial disclosures and responses to written discovery and has
failed to respond to correspondence from defense counsel regarding
these shortcomings.
Plaintiff Courts, who is proceeding pro se, has filed a
response in opposition (Docket Entry No. 34).

In his response

plaintiff implies, but does not state explicitly, that he failed to
receive certified mail at his address because he was not at home
when the Post Office attempted delivery.
In consideration of the facts that (1) plaintiff is
proceeding pro se and, therefore, is entitled to some leniency that

the Court would not normally extend to a licensed attorney, (2)
plaintiff

has

filed

a

response

indicating

his

intention

to

prosecute this case, and (3) defendant has not yet filed a motion
to compel discovery, the undersigned Magistrate Judge finds that
defendant’s motion to dismiss for failure to prosecute and for
failure to serve discovery is premature and should be denied at
this time. Nevertheless, plaintiff should be admonished that he is
obligated to attend to his obligations to make discovery, and that
a continuing failure to do so may cause his case to be dismissed.
RECOMMENDATION
For the reasons stated above, the undersigned Magistrate
Judge RECOMMENDS that defendant’s motion to dismiss be DENIED as
premature.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any party has fourteen (14) days from service of this Report and
Recommendation in which to file any written objections to this
Recommendation, with the District Court.

Any party opposing said

objections shall have fourteen (14) days from receipt of any
objections filed in this Report in which to file any responses to
said objections.

Failure to file specific objections within

fourteen (14) days of receipt of this Report and Recommendation can
constitute a waiver of further appeal of this Recommendation.
Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111
(1986).
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ENTERED this 19th day of September 2011.
s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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