Aery v. Birt
- Nancy Brasel
- 0:24-cv-03246
- U.S. District Court · District of Minnesota
- 2
In Aery v. Birt, Magistrate Judge Brisbois recommended dismissing the action without prejudice because Aery did not pay the filing fee or communicate with the court.
James Paul Aery’s action against Brian Birt was recommended for dismissal without prejudice because Aery did not pay the required filing fee or pursue the case. The recommendation did not decide the merits of Aery’s claims.
What happened
In Aery v. Birt, the court had ordered James Paul Aery to pay the action’s $405 filing fee within 30 days. The order warned that failing to pay could lead to dismissal for failure to pursue the case.
The deadline passed, but Aery did not pay the fee or communicate with the court after starting the action. The recommendation concerned Aery’s failure to follow the court’s order, not whether his claims against Brian Birt were valid.
Magistrate Judge Leo I. Brisbois recommended dismissing the action without prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute. The report was not a final order, and the parties could file written objections within 14 days; the listed district judge was Nancy Brasel.
The detailed version
- Aery v. Birt · No. 0:24-cv-03246
- Nancy Brasel
- Oct. 10, 2024
Background
James Paul Aery brought this action against Brian Birt. On August 27, 2024, the court ordered Aery to pay the full statutory filing fee of $405 within 30 days. The court warned that failure to pay could result in a recommendation that the action be dismissed without prejudice for failure to prosecute.
Failure to Comply
The 30-day deadline passed, and Aery had not paid the filing fee. The report also states that Aery had not communicated with the court at all since beginning the action.
Recommendation and Procedure
Magistrate Judge Leo I. Brisbois recommended that the action be dismissed without prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute. A dismissal without prejudice does not bar refiling, although the report did not address any separate requirements or limitations that might apply. Because this was a report and recommendation rather than a final order or judgment, it was not directly appealable to the U.S. Court of Appeals for the Eighth Circuit. The parties could file specific written objections within 14 days after receiving the report, and responses to objections could be filed within 14 days after service of the objections.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.