United States District Court, W.D. Arkansas, El Dorado Division
BENJAMIN R. WOOTEN PLAINTIFF
ENTERGY ARKANSAS, INC. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS IBEW LOCAL 1703 DEFENDANTS
O. Hickey United States District Judge.
the Court is the Report and Recommendation filed April 25,
2018, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. (ECF
No. 56). Judge Bryant recommends that the Court grant two
motions to dismiss (ECF Nos. 49, 52) filed by Defendants.
Plaintiff Benjamin R. Wooten has filed timely objections.
(ECF No. 57). The Court finds the matter ripe for
March 6, 2017, Plaintiff filed an amended complaint in this
action, asserting, inter alia, claims of race and
age discrimination against Defendants in violation of Title
VII of the Civil Rights Act of 1964; the Age Discrimination
in Employment Act; as well as claims of wrongful discharge,
retaliation, breach of contract, and intentional infliction
of emotional distress. On December 1, 2017, the Court granted
Plaintiff's counsel's motion to withdraw. (ECF No.
40). In the same order, the Court advised Plaintiff that he
would have thirty days to inform the Court of new counsel or
the Court would assume that Plaintiff is proceeding pro
se. On January 5, 2018, the Court extended
Plaintiff's time to find replacement counsel to February
5, 2018. (ECF No. 42). To date, Plaintiff has not informed
the Court of new counsel.
February 19, 2018, Defendant Entergy Arkansas, Inc.
(“Entergy”) filed a motion requesting a
telephonic status conference, stating that Plaintiff has
failed to respond to outstanding discovery requests. On March
7, 2018, Judge Bryant conducted a telephonic status
conference with Plaintiff and defense counsel. Judge Bryant
subsequently entered an order directing Plaintiff to respond
to all outstanding discovery requests and provide potential
deposition dates to Entergy by March 23, 2018, and that
failure to do so may result in dismissal of this case. Judge
Bryant also ordered that Plaintiff's deposition must take
place by March 31, 2018.
March 26, 2018, Entergy filed a motion to dismiss, stating
that Plaintiff had not complied with the Court's order to
respond to all outstanding discovery requests and provide
potential deposition dates by March 23, 2018. (ECF No. 49).
Entergy argued that in light of this fact, the Court should
dismiss Plaintiff's case with prejudice for failure to
obey a court order. On April 2, 2018, Defendant International
Brotherhood of Electrical Workers (IBEW) Local 1703 filed a
motion joining in Entergy's motion to dismiss. (ECF No.
52). On April 5, 2018, Plaintiff responded to Entergy's
motion to dismiss, stating that he is still trying to obtain
responsive documents and that he has requested telephone
records from his telephone provider. (ECF No. 54). On April
5, 2018, Entergy filed a reply, stating that telephone
records are only responsive to part of the outstanding
discovery requests and that Plaintiff violated the
Court's order directing him to respond to all discovery
requests and provide potential deposition dates by March 23,
2018. (ECF No. 55).
April 25, 2018, Judge Bryant issued the instant Report and
Recommendation, recommending that the Court grant the motions
to dismiss and dismiss Plaintiff's case without
prejudice. Judge Bryant reasoned that Plaintiff failed to
comply with the Court's March 8, 2018, order directing
him to respond to all outstanding discovery requests and
provide potential deposition dates by March 23, 2018. Judge
Bryant found further that the Court's March 8, 2018,
order warned Plaintiff that failure to comply with the
directive could result in dismissal of his case. Judge Bryant
concluded that the Court should dismiss Plaintiff's case
pursuant to Federal Rule of Civil Procedure 41 and Local Rule
5.5. On May 7, 2018, Plaintiff filed timely objections to the
Report and Recommendation. Pursuant to 28 U.S.C. §
646(b)(1), the Court will conduct a de novo review
of all issues related to Plaintiff's specific objections.
objections are largely unresponsive to Judge Bryant's
Report and Recommendation. Plaintiff states that his former
counsel delayed the return of his file and charged him $10,
000. He states further that he has attempted to obtain new
counsel but none would help him due to time restraints. He
also states that he has attempted to contact the Clerk's
office in Texarkana but the office phone would not accept
incoming calls from cell phones. Plaintiff concludes that the
Court should not dismiss his case.
pro se pleadings are to be construed liberally, a
pro se litigant is not excused from complying with
substantive and procedural law. Burgs v. Sissel, 745
F.2d 526, 528 (8th Cir.1984). The Local Rules state in
It is the duty of any party not represented by counsel to
promptly notify the Clerk and the 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 . . . If any communication from the Court
to a pro se plaintiff is not responded to within
thirty (30) days, the case may be dismissed without
prejudice. Any party proceeding pro se shall be
expected to be familiar with and follow the Federal Rules of
Local Rule 5.5(c)(2).
the Federal Rules of Civil Procedure specifically contemplate
dismissal of a case on the ground that the plaintiff failed
to prosecute or failed to comply with orders of the court.
Fed.R.Civ.P. 41(b); Link v. Wabash R.R. Co., 370
U.S. 626, 630-31 (1962) (stating that the district court
possesses the power to dismiss sua sponte under Rule
41(b)). Pursuant to Rule 41(b), a district court has the
power to dismiss an action based on “the
plaintiff's failure to comply with any court
order.” Brown v. Frey, 806 F.2d 801, 803-04
(8th Cir. 1986) (emphasis added).
case, the Court entered an order directing Plaintiff to
respond to all outstanding discovery requests and provide
potential deposition dates by March 23, 2018. To date,
Plaintiff has not done so and has not sought an extension of
the court-imposed deadline. Plaintiff's objections offer
neither law nor fact which would cause the Court to deviate
from Judge Bryant's Report and Recommendation. Therefore,
the Court finds that dismissal of this case is appropriate
pursuant to Federal Rule of Civil Procedure 41(b) and Local
de novo review of the Report and Recommendation, and
the reasons discussed above, the Court hereby overrules
Plaintiff's objections and adopts the Report and
Recommendation in toto. (ECF No. 56).
Defendants' motions to dismiss (ECF Nos. 49, 52) are
hereby GRANTED IN PART AND DENIED IN
PART. Plaintiff's case is DISMISSED