CASE NO. 11-cv-05857 JRC
ORDER GRANTING DEFENDANT HOME DEPOT'S SECOND MOTION TO DISMISS
This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local Magistrate Judge Rule MJR 13 (see also Joint Status Report, ECF No. 9, p. 3). This matter is before the Court on Defendant's Second Motion to Dismiss (ECF No. 19). Plaintiff has not responded to this motion.
The Court has reviewed Defendant Home Depot's Second Motion to Dismiss (ECF No. 19), the Declaration of Gregory Thatcher in Support of Defendant Home Depot's Second Motion to Dismiss with Exhibit 1 (ECF No. 20) and Defendant Home Depot's Reply in Support of Second Motion to Dismiss (ECF No. 21).
Plaintiff, CORY BARCUS, filed a complaint in this Court against defendant, HOME DEPOT U.S.A., INC., on October 17, 2011 (see ECF No. 1). Plaintiff alleges that he incurred an injury while attempting to load merchandise onto his truck with assistance from one of defendant's employees (see id., ¶ 3). Although plaintiff initially was represented by an attorney, on February 28, 2012, the Court granted the Motion to Withdraw as Attorney, which was filed by plaintiff's counsel (see ECF Nos. 12, 13). Although the Motion to Withdraw as Attorney indicated that plaintiff had agreed to seek and retain other counsel for representation in this matter, no attorney has appeared on behalf of plaintiff since that point in time (see ECF No. 12, p. 1).
On March 23, 2012, defendant filed a Motion to Dismiss Plaintiff's Action or in the Alternative for an Order Compelling Discovery (see ECF No. 14; see also ECF Nos. 15-16, 17). Plaintiff did not file a response to that motion (see ECF No. 17, p. 1).
On April 18, 2012 this Court ordered Plaintiff to provide his Initial Disclosures and answers to Defendant's First Set of Interrogatories and Requests for Production to Defendant no later than May 3, 2012 and that failure to comply with that order may result in dismissal of this action (see ECF No. 18).
This Court finds that Plaintiff has failed to comply with this Court's April 18, 2012 Order Compelling Discovery (ECF No. 18);
This Court finds that Plaintiff has failed to serve timely his Initial Disclosures, as required by Fed. R. Civ. P. 26(a)(1);
This Court finds that Plaintiff has not provided timely answers to Defendant's First Set of Interrogatories and Requests for Production;
This Court finds that Defendant has made good faith attempts to secure Plaintiff's Initial Disclosures and answers to its First Set of Interrogatories and Requests for Production without the Court's intervention;
This Court finds that Plaintiff failed to notify this Court and Defendant of any change of address;
This Court finds that Plaintiff has not complied with the Federal Rules of Civil Procedure, and in particular Rules 26(a)(1), 33(b)(1)(2) and 34(b)(2); and
This Court finds that Plaintiff has failed to prosecute his case.
Based on the foregoing findings,
IT IS HEREBY ORDERED that Plaintiff's action against defendant is DISMISSED WITH PREJUDICE.
J. Richard Creatura
United States Magistrate Judge