Filipovic v. John B. Sanfilippo and Son, Inc.

Filing 33

REPORT AND RECOMMENDATIONS - the case be dismissed for failing to prosecute; re 31 Motion to Compel, filed by John B. Sanfilippo & Son, Inc. can be moot.Signed by Judge Nancy Stein Nowak. (mailed on 3/15/2012 by certified mail, or sent via electronic transmittal(rg)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

IVICA FILIPOVIC
Plaintiff,
v.
JOHN B. SANFILIPPO & SON, INC.
Defendant.

§
§
§
§
§
§
§
§

CIVIL ACTION NO.
SA-11-CV-0353 XR

REPORT AND RECOMMENDATION
TO:

Honorable Xavier Rodriguez
United States District Judge
This report and recommendation recommends dismissing this case for failing to

prosecute. The district judge referred this case to me for disposition of the pending
motion to compel.1 In the motion, defendant John B. Sanfilippo & Son, Inc. (Sanfilippo)
asked the court to compel plaintiff Ivica Filipovic to submit to a deposition and to
respond to discovery requests. Sanfilippo’s motion discussed its protracted efforts to
communicate with Filipovic, schedule his deposition, and obtain discovery.2
Because Filipovic is unrepresented, I questioned whether Filipovic appreciated
the need to respond to Sanfilippo’s discovery efforts. Because Filipovic’s attorneys

1

Text Order referring docket entry # 31 Motion to Compel, Feb. 21, 2012.

2

Docket entry # 31.

withdrew from representation after Filipovic failed to communicate with his attorneys
and failed to produce information for discovery,3 I also considered whether Filipovic
has abandoned his claims.
To ensure that Filipovic understood his responsibility to participate in discovery,
I advised Filipovic about the necessity of responding to Sanfilippo’s motion to compel
and warned him about the consequences of not responding.4 I directed Filipovic to
respond Sanfilippo’s motion to compel in writing by March 9, 2012, and to address the
matters in the motion and express his intention about pursuing his claims. I warned
Filipovic that if he did not respond, I would recommend dismissing this case for failing
to prosecute.
The deadline for responding passed. Filipovic did not respond. The failure to
respond indicates Filipovic has abandoned his claims.
Recommendation. Because Filipovic abandoned his claims, I recommend
dismissing this case under Rule 415 for failing to prosecute. In the alternative, the court

3

Docket entry # 28.

4

Docket entry # 32.

5

See Fed. R. Civ. P. 41(b) (permitting the defendant to move for dismissal on grounds
the plaintiff failed to prosecute his case); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d
241, 247 (5th Cir. 1980) (explaining that “a federal district court possesses the inherent
authority to dismiss an action for want of prosecution”).
2

may dismiss this case under Rule 376 for failing to respond to discovery. If the district
court accepts this recommendation, the court can deny the motion to compel (docket
entry # 31) as moot.
Instructions for Service and Notice of Right to Object/Appeal. The United
States District Clerk shall serve a copy of this report and recommendation on all parties
by either (1) electronic transmittal to all parties represented by attorneys registered as a
“filing user” with the clerk of court, or (2) by mailing a copy to those not registered by
certified mail, return receipt requested. Written objections to this report and
recommendation must be filed within 14 days after being served with a copy of same,
unless this time period is modified by the district court.7 Such party shall file the
objections with the clerk of the court, and serve the objections on all other parties. A
party filing objections must specifically identify those findings, conclusions or
recommendations to which objections are being made and the basis for such objections;
the district court need not consider frivolous, conclusive or general objections. A
party’s failure to file written objections to the proposed findings, conclusions and
recommendations contained in this report shall bar the party from a de novo

6

Fed. R. Civ. P. 37(d) (authorizing sanctions for failing to attend deposition, serve
answers to interrogatories or respond to request for inspection); Fed. R. Civ. P. 37
(b)(2)(A)(v) (listing “dismissing the action or proceeding in whole or in part” as an
available sanction).
7

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
3

determination by the district court.8 Additionally, failure to file timely written
objections to the proposed findings, conclusions and recommendations contained in this
report and recommendation shall bar the aggrieved party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and
legal conclusions accepted by the district court.9
SIGNED on March 15, 2012.

_____________________________________
NANCY STEIN NOWAK
UNITED STATES MAGISTRATE JUDGE

8

Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, 200 F.3d 335, 340
(5th Cir. 2000).
9

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
4