Datatern, Inc. v. Eli Lilly and Company et al

Filing 265

ORDER ADOPTING REPORT AND RECOMMENDATION for 262 Report and Recommendation. Volkswagen, Aflac, and Walgreen Companys motions to dismiss for failure to prosecute, Docket Nos. 253-255, are GRANTED. Dataterns Complaints against these Defendants are DISMISSED WITHOUT PREJUDICE. The clerk is directed to close this case. Signed by Judge Robert W. Schroeder, III on 5/8/2017. (slo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
DATATERN, INC.,

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§ Case No. 2:10-CV-00413-RWS-RSP
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Plaintiff,
v.
ELI LILLY AND COMPANY, et al.,

Defendants.

ORDER
Before the Court is the Report and Recommendation filed by Magistrate Judge Payne on
April 9, 2017 (Docket No. 262) recommending that Defendants’ motion to dismiss for lack of
prosecution be granted, and that Datatern’s complaint be dismissed without prejudice. No
objections have been filed by Datatern. Defendant Volkswagen objects to Judge Payne’s
.
recommendation to dismiss Datatern’s complaint without prejudice, see Docket No. 263, but as
the Report explains, a dismissal without prejudice is “usually appropriate before dismissing
with prejudice.” Docket No. 262 at 2 (quoting Nottingham v. Warden, Bill Clements Unit,
837 F.3d 438, 441 (5th Cir. 2016)). Accordingly, it is
ORDERED that Volkswagen, Aflac, and Walgreen Company’s motions to dismiss for
failure to prosecute, Docket Nos. 253-255, be GRANTED. Datatern’s Complaints against these
Defendants are DISMISSED WITHOUT PREJUDICE. The clerk is directed to close this case.
SIGNED this 8th day of May, 2017.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE