DeJesus v. Rudolph

Background

Defendants filed a motion to dismiss the amended complaint on April 20, 2020. The opinion states that Plaintiff did not amend the operative complaint in response to the motion and did not oppose it.

Under Federal Rule of Civil Procedure 15(a)(1)(B), a plaintiff generally has 21 days after service of a motion under Rule 12(b) to amend the complaint once as a matter of course. The court also noted that a court may treat a claim as abandoned when a plaintiff does not respond to arguments that the claim should be dismissed.

Failure to Comply with Court Orders

On May 20, 2020, the court ordered Plaintiff to file either an amended complaint or a memorandum opposing Defendants’ motion to dismiss by May 29, 2020. The court warned that failure to do so would result in dismissal for failure to prosecute. After granting Plaintiff an extension, the court states that Plaintiff still did not comply.

The opinion further states that Plaintiff’s counsel represented during two separate telephone calls with chambers staff that counsel would file a status update, but counsel did not do so. On July 13, 2020, the court issued another order requiring Plaintiff to file an amended complaint or opposition memorandum by July 17, 2020, again warning that noncompliance would result in dismissal. Plaintiff did not comply with that order or the earlier orders.

Ruling

Judge Vernon S. Broderick ordered that the case be dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b). The Clerk was directed to terminate the case. The order did not rule on the merits of Plaintiff’s claims or decide Defendants’ motion to dismiss.