McClung v. Dyncorp International LLC

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 28 Report and Recommendations and dismissing this case without prejudice for failure to prosecute. Signed by Judge Leonard Davis on 3/4/14. (mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
NATHANIEL JEROME McCLUNG,
Plaintiff,
v.
DYNCORP INTERNATIONAL LLC,
Defendant.

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CIVIL ACTION NO. 6:12-cv-953

ORDER ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES
MAGISTRATE JUDGE
The Report and Recommendation of the Magistrate Judge, which contains her findings,
conclusions, and recommendation for the disposition of this case has been presented for
consideration. The Report and Recommendation (Doc. No.28) recommends that the claims of
Mr. McClung be dismissed without prejudice.

Defendant received the Report and

Recommendation electronically on January 28, 2014. The Report and Recommendation was
mailed to Plaintiff, via certified mail, return receipt requested. It was returned as “unclaimed” on
February 25, 2014 (Doc. No.30). The return shows that delivery was attempted on February 4,
2014, February 10, 2014, and February 20, 2014.
On February 7, 2014, Defendant submitted an Objection to the Report and
Recommendation (Doc. No. 29). Defendant agree that the case should be dismissed but argue
that it should be dismissed with prejudice due to Plaintiff’s refusal to participate. Doc. No. 29 at
1.

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Dismissal with prejudice “is an extreme sanction that deprives a litigant of the
opportunity to pursue his claim.” Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247
(5th Cir. 1980). In this case it appears a lesser sanction would better serve the interests of
justice. Defendant’s grievances are mainly directed at Plaintiff’s failure to participate in the
discovery process. But Plaintiff doesn’t appear to have acted out of a stubborn resistance to
authority. Instead, he is a pro se plaintiff who seems to have lost any interest in pursuing his
case. If this is the situation, Plaintiff should have filed a notice of voluntary dismissal. While
Plaintiff’s conduct was clearly not appropriate, dismissal without prejudice is a fitting sanction.
Having made a de novo review of the written objections filed by Defendant, the findings
and conclusions of the Magistrate Judge are correct. The Court, therefore, adopts the findings
and conclusions of the Magistrate Judge as those of the Court.
In light of the foregoing, it is
ORDERED that Plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE for
failure to prosecute.
So ORDERED and SIGNED this 4th day of March, 2014.

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LEONARD DAVIS
UNITED STATES DISTRICT JUDGE

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