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Zachary Nowland v. Benjamin Lucas

January 3, 2012

ZACHARY NOWLAND, PLAINTIFF,
v.
BENJAMIN LUCAS, ET AL., DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Carlson

MEMORANDUM AND ORDER

I. Statement of Facts and of the Case

This is a civil rights action brought by Zachary Nowland. Nowland initially filed this action through counsel on September 2, 2010. (Doc. 1) On September 16, 2011, Nowland's counsel moved to withdraw from this action, citing repeated failures by the plaintiff to comply with his counsel's instructions. (Doc. 18) On September 19, 2011, we granted this request. (Doc. 19)

Upon the withdrawal of his counsel, Nowland elected to proceed pro se, but immediately began defaulting on his obligations as a litigant in federal court. Thus, on October 24, 2011, and November 18, 2011, we directed Nowland to appear for a deposition which was ultimately scheduled for December 5, 2011, and provide other discovery sought by the defendants in this case. (Doc. 24 and 26) In our November 18 order we also advised Nowland in clear and precise terms of the consequences that would flow if he failed to attend this deposition, or otherwise neglected his discovery obligations, stating that: "If the plaintiff fails to comply with this order, the plaintiff is advised that this action may be subject to dismissal" (Doc. 26)

This order was returned as undeliverable. (Doc. 27) Thus, it became apparent that Nowland was no longer accepting communications at the last address which he had provided to the Court. As a pro se litigant Nowland's failure to maintain an address where he could be reached itself violated the rules of this Court; specifically, Local Rule 83.18, which provides that:

LR 83.18 Appearance of Parties Not Represented by Counsel.

Whenever a party by whom or on whose behalf an initial paper is offered for filing is not represented in the action, such party shall maintain on file with the clerk a current address at which all notices and copies of pleadings, motions or papers in the action may be served upon such party.

On December 5, 2011, Nowland failed to appear for his deposition as directed by this Court. Nor has Nowland advised the Court or opposing counsel of his current whereabouts. Therefore Nowland also remains in violation of Local Rule 83.18.

On December 15, 2011, the defendants moved to dismiss this action pursuant to Rule 41 of th Federal Rules of Civil Procedure, citing Nowland's persistent falure to prosecute this action over the past several months. (Docs. 28 and 29) The 14-day response deadline for this motion prescribed by Local Rule 7.5 has now passed without any action on Nowland's part to respond to this motion, provide discovery, or otherwise prosecute this case. Therefore, this matter is now ripe for resolution.

For the reasons set forth below, the motion to dismiss will be granted.

II. Discussion

A. Under The Rules of This Court This Motion to Dismiss Should Be Deemed Unopposed and Granted

At the outset, under the Local Rules of this Court the plaintiff should be deemed to concur in this motion, since Nowland has failed to timely oppose the motion, or otherwise litigate this case. This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion, and under the rules of this Court warrants dismissal of the action, since Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiff to respond to motions and provides that:

Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive ...


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