Nielsen v. J.C. Penny Company, Inc.

Background

Junious Nielsen filed this action under the Uniformed Services Employment and Reemployment Rights Act, a federal law concerning employment rights of people who serve in the uniformed services. Nielsen later filed a motion asking to dismiss his own complaint. He did not appear for a conference concerning that motion.

The court ordered Nielsen to explain why the action should not be dismissed under Federal Rule of Civil Procedure 41 for failure to prosecute, meaning failure to actively pursue a case. Nielsen then failed to appear or otherwise prosecute the action.

Report and Recommendation

Magistrate Judge Henry J. Ricardo issued a Report and Recommendation on March 20, 2025. It recommended that the action be dismissed, without prejudice, because Nielsen failed to prosecute it. The recommendation gave the parties fourteen days to object and warned that failing to object on time would waive the right to object.

No objections or requests for additional time were filed. The district court therefore stated that Nielsen waived the right to object to the recommendation or obtain appellate review. Even so, the court reviewed the underlying motion and the recommendation and found the recommendation well reasoned and supported by the facts and law.

Ruling

Judge Jessica G. L. Clarke adopted the Report and Recommendation in its entirety. The action was dismissed, without prejudice, for Nielsen’s failure to prosecute. The court also certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith and denied permission to proceed without paying fees for such an appeal. The Clerk was directed to terminate Nielsen’s motion, mail him a copy of the order, and close the case.