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Bolden v. United States Postal Service

United States District Court, S.D. Texas, Houston Division

April 13, 2017

MARIE BOLDEN, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, et al., Defendants.

          ORDER OF DISMISSAL

          KENNETH M. HOYT UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This matter is before the Court on the defendant's, United States of America (the “United States” or the “defendant”), motion to dismiss (Dkt. No. 15). The plaintiff, Marie Bolden (the “plaintiff”), has failed to file a response and the time for doing so has long expired. Thus, pursuant to this Court's local rules, the plaintiff's “[f]ailure to respond will be taken as a representation of no opposition.” S.D. Tex L.R. 7.4. After having carefully considered the motion, the pleadings, and the applicable law, the Court determines that the defendant's motion to dismiss should be GRANTED.

         II. BACKGROUND

         On March 25, 2016, the plaintiff, proceeding pro se and in forma pauperis, filed the instant action against the United States Postal Service arising out of an automobile accident that occurred on October 26, 2013, between an automobile, in which the plaintiff was traveling as a passenger, and a United States Postal Service truck. On June 17, 2016, the United States filed a stipulation to dismiss the United States Postal Service as a defendant and requesting that it be substituted as the proper defendant in its place. (Dkt. No. 5). Thereafter, the defendant filed a Third-Party Complaint against Jamma N. Harris, the driver of the automobile transporting the plaintiff, alleging that Harris's negligence was the sole cause of the plaintiff's injuries and damages. (Dkt. No. 7). On June 20, 2016, the Court entered an Order granting the defendant's stipulation and dismissing the United States Postal Service as a party. (Dkt. No. 8). The defendant now moves to dismiss the plaintiff's complaint pursuant to Rules 37(b)(2)(A)(v) and 41(b) of the Federal Rules of Civil Procedure due to the plaintiff's failure to comply with this Court's Order dated November 3, 2016, granting the defendant's motion to compel. (Dkt. No. 14).

         At this case's inception, on March 30, 2016, the Court issued an Order for Conference and Disclosure of Interested Parties advising that, inter alia: (1) the parties' attendance is required at the initial pretrial and scheduling conference to be held telephonically on June 27, 2016 at 9:00 a.m.; (2) all defendants must be served within 90 days of filing the complaint as mandated by Fed.R.Civ.P. 4(m); (3) the parties are obligated to confer in accordance with Fed.R.Civ.P. 26(f) and file a joint discovery/case management plan no less than 10 days prior to the pretrial scheduling conference; and (4) pro se litigants are “bound by the requirements imposed upon counsel” and that a “[f]ailure to comply with the order may result in sanctions, including dismissal of the action and assessment of fees and costs.” (Dkt. No. 3).

         On June 30, 2016, following the telephonic scheduling conference held in this case on June 27, 2016, and in compliance with this Court's Order, the defendant served its initial disclosures on the plaintiff. On July 29, 2016, the defendant served its first set of interrogatories, requests for production and requests for admission on the plaintiff. On September 15, 2016, however, after having failed to receive any communication from the plaintiff and/or any answers or responses to any of its discovery requests, the defendant sent the plaintiff a letter stating the following:

On July 27, 2016, I served Defendant's first set of interrogatories, requests for production and requests for admission on you via regular mail. The answers/responses were due almost a month ago on August 29, 2016, and the time for objections has long since passed, so please serve your answers/responses, without objections, as soon as possible so that I can notice your deposition shortly thereafter and get this case moving given the impending deadlines. If you no longer wish to pursue this case, please let me know so that I can draft the appropriate dismissal documents. My direct line is (713) 567-9731.
If I do not receive your answers/responses, or in the alternative, your communication that you no longer wish to pursue this case, I intend on filing a motion to compel your answers/responses forthwith.

(See Dkt. No. 12, Ex. 3).

         On September 28, 2016, the plaintiff left the defendant a voice message at the number listed above indicating that she still wished to pursue her action against the defendant, but giving no indication as to when she intended to serve responses to any of the defendant's outstanding discovery requests. Approximately an hour thereafter, the defendant telephoned the plaintiff and left her a voice message asking her to call to advise when it could expect to receive her outstanding discovery answers and/or responses. The plaintiff, however, never returned the defendant's phone call.

         On October 4, 2016, the defendant filed a motion to compel. (Dkt. No. 12). On November 3, 2016, this Court entered an Order compelling the plaintiff to provide her initial disclosures, answers to the defendant's first set of interrogatories and requests for production by November 13, 2016. (Dkt. No. 14). To date, the plaintiff has failed to comply with this Court's Order or otherwise offer any explanation for her inability to do so.

         The dispositive motion deadline in this case expired on February 28, 2017 and this case is currently set for docket call on June 5, 2017.

         III. ...


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