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Lara v. Capital Recovery Associates

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


August 28, 2008

VICTOR LARA, PLAINTIFF
v.
CAPITAL RECOVERY ASSOCIATES, DEFENDANT

The opinion of the court was delivered by: Judge Conner

ORDER

AND NOW, this 28th day of August, 2008, upon consideration of the order of court (Doc. 5) dated August 14, 2008, which instructed plaintiff to file an affidavit confirming that more than twenty days have elapsed since service of the summons and complaint*fn1 and stated that failure to file such an affidavit would result in dismissal of the above-captioned matter for failure to prosecute, and it appearing that plaintiff has not complied with this order, see FED. R. CIV. P. 41(b) ("If the plaintiff fails to prosecute or to comply with . . . a court order, a defendant may move to dismiss the action or any claim against it."); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (interpreting Rule 41(b) of the Federal Rules of Civil Procedure as permitting sua sponte dismissals by the court); Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (identifying six factors relevant to deciding whether to dismiss for failure to prosecute), and the court finding that plaintiff was advised of the necessity of complying with the court's order and is personally responsible for failing to do so, see id. at 868 (identifying "extent of the party's personal responsibility" as a factor), that plaintiff's conduct has prejudiced defendants by failing to certify that defendants have received notice of the claims against them, see id. (identifying "[p]rejudice to the adversary" as a factor), that plaintiff's failure to respond to the order of court dated August 14, 2008 (Doc. 5) constitutes a history of dilatoriness, see id. (identifying "history of dilatoriness" as a factor), that plaintiff's failure to respond when specifically ordered to do so constitutes willful disregard of the court's authority, see id. at 868-69 (identifying "willful" or "bad faith" conduct as a factor), that assessment of costs against plaintiff would be ineffective to deter plaintiff's conduct because no costs have yet accrued to defendant, see also Poulis, 747 F.2d at 869 (identifying availability of "[a]lternative sanctions" to dismissal as a factor), and that the merits of plaintiff's claims cannot be adjudicated absent service of the complaint, see id. at 689-70 (identifying "[m]eritoriousness of the claim" as a factor)*fn2 , it is hereby ORDERED that:

1. The claims against all defendants are DISMISSED with prejudice for failure to prosecute. See FED. R. CIV. P. 41(b).

2. The Clerk of Court is directed to CLOSE this case.

CHRISTOPHER C. CONNER United States District Judge


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