Juniper Bishops, LLC v. Holland

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO JUNIPER BISHOPS, LLC, Plaintiff, v. CIV 21-674 CG/SCY RICHARD HOLLAND, Defendant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION THIS MATTER comes before the Court sua sponte. On November 17, 2021, the Court issued an Order to Show Cause to Plaintiff to provide an explanation why Defendant was not served. Doc. 3. The Court ordered: [I]n order to avoid dismissal of this action, Plaintiff must either effect service or provide the Court with a written explanation showing good cause why service has not been made, on or before Monday, November 29, 2021.

Id. at 1.

That deadline passed without a response from Plaintiff or a request for extension of time to respond. Because Plaintiff has neither filed proof of service on Defendant nor responded to the Order to Show Cause, I recommend that the Court dismiss this case without prejudice.

Rule 41(b) permits a court to dismiss an action or any claim for failing to prosecute that action or claim. See Fed. R. Civ. P. 41(b); Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (“Although the language of Rule 41(b) requires that the defendant file a motion to dismiss, the Rule has long been interpreted to permit courts to dismiss actions sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or court’s orders.”). “Employing Rule 41(b) to dismiss a case without prejudice . . . allows the plaintiff another go at [compliance]; accordingly, a district court may, without abusing its discretion, enter such an order without attention to any particular procedures,” such as an evaluation of the Ehrenhaus factors. Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty. Just. Ctr., 492 F.3d 1158, 1162 (10th Cir. 2007).

Given that Plaintiff has not served Defendant in the 4 months that have passed since Plaintiff filed the complaint and that Plaintiff has not responded to the Order to Show Cause, I recommend that the Court dismiss this suit without prejudice.

STEVEN C. Y ROUGH UNITED STATES MAGISTRAT DGE THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of these Proposed Findings and Recommended Disposition they may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any objections with the Clerk of the District Court within the fourteen-day period if that party wants to have appellate review of the proposed findings and recommended disposition. If no objections are filed, no appellate review will be allowed.