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Scott v. Staffmark

September 6, 2007

WHEELER C. SCOTT PLAINTIFF
v.
STAFFMARK DEFENDANT



The opinion of the court was delivered by: James M. Moody United States District Judge

ORDER

Pending is Defendant, Staffmark's motion to dismiss. (Docket # 10). Plaintiff has not responded. Plaintiff's complaint alleges employment discrimination based upon race pursuant to Title VII. Defendant contends that Plaintiff's complaint should be dismissed for lack of jurisdiction, failure to state a claim upon which relief may be granted, failure to join a party, insufficiency of process and insufficiency of service of process. In a Show Cause Order entered August 14, 2007 the Court directed Plaintiff to respond to the Court on or before August 23, 2007 to show cause why he has not responded to the pending motion to dismiss. The Court warned Plaintiff that failure to respond to the Order could result in the dismissal of his case. On August 23, 2007 the Defendant filed a notice with the Court demonstrating that correspondence sent to the Plaintiff's last known address had been returned by the postal service stamped "Return to Sender, Box Closed, No Order." On August 24, 2007, the Defendant filed another notice with the Court indicating that the Plaintiff had contacted counsel for Defendant and confirmed that the address listed was correct. Defendant then re-mailed copies of its motion to dismiss and supporting papers. Plaintiff has not responded to Defendant's motion or the Order of this Court.

Local Rule 5.5(c)(2) provides that "it is the duty of any party not represented by counsel to promptly notify the Clerk and other parties to the proceedings of any change in his or her address, to monitor the progress of the case, and to prosecute or defend the action diligently." Defendant's motion to dismiss was filed on July 19, 2007, Plaintiff has not responded and Plaintiff has not responded to the Court's Order.

Under these circumstances, the Court concludes that this case should be dismissed without prejudice for failure to comply with Local Rule 5.5(c)(2). See Miller v. Benson, 51 F.3d 166, 168 (8th Cir. 1995) ("District courts have inherent power to dismiss sua sponte a case for failure to prosecute, and we review the exercise of this power for abuse of discretion.")

IT IS THEREFORE ORDERED that Plaintiff's Complaint (docket entry #1) be and it is hereby DISMISSED WITHOUT PREJUDICE.

DATED this 6th day of September, 2007.

20070906

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