Emery et al v. Chevron USA Inc

Filing 95

MEMORANDUM DECISION granting 89 Motion to Dismiss Party Keegan Westphal; granting 89 Motion to Dismiss for Lack of Prosecution. Signed by Judge David Nuffer on 8/21/12 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
E. LYNN HANSEN, as Personal
Representative on behalf of the heirs of
SHAWN EMERY, et al.,
Plaintiffs,

MEMORANDUM DECISION AND
ORDER GRANTING MOTION TO
DISMISS CLAIMS OF PLAINTIFF
KEEGAN WESTPHAL

v.
Case No. 2:08-cv-959 DN
CHEVRON U.S.A., INC., et al.,
District Judge David Nuffer
Defendants.

Defendant Chevron U.S.A. Inc. has moved to dismiss the complaint of Plaintiff Keegan
Westphal under Fed. R. Civ. P. 16(f)(1) and 41(b) for failure to file a notice of appearance, as
ordered by the court when it permitted Westphal’s counsel to withdraw, and for failure to
prosecute his claims in this case. 1 In its Order Granting Motion for Withdrawal of Counsel for
Plaintiff Keegan Westphal, the court ordered Mr. Westphal (or new counsel retained by him) to
enter a notice of appearance within 21 days of the date of the order, which was entered on July
28, 2011. 2 Mr. Westphal was specifically warned that failure to do so would result in sanctions
under Fed. R. Civ. P. 16(f)(1), “including but not limited to dismissal or default judgment.” 3
More than one year has passed, and Mr. Westphal has not entered an appearance and has
not participated in any of the proceedings in this matter. Mr. Westphal also has not filed any
response to Chevron’s motion to dismiss, and the time for doing so has expired. The court
therefore concludes that Mr. Westphal has abandoned his complaint, which must be dismissed

1

Motion to Dismiss Plaintiff Keegan Westphal, docket no. 89, filed on August 2, 2012.

2

Docket no. 61.

3

Id. at 1.

under Fed. R. Civ. P. 16(f)(1) and 41(b) for failure to appear and prosecute his claims in this
case.
ORDER
IT IS THEREFORE ORDERED that the Motion to Dismiss Plaintiff Keegan Westphal
(docket no. 89) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff Keegan Westphal’s claims against Defendant
Chevron U.S.A. Inc. are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the clerk of the court close this case forthwith.
Dated August 21, 2012.
BY THE COURT:

____________________________
David Nuffer
United States District Judge

2