Mena v. Gutwein

Background

The court had issued an earlier opinion and order that granted in part and denied in part the defendants’ motion to dismiss. It then scheduled an initial case-management and scheduling conference for October 21, 2020, and ordered the parties to file a proposed discovery and scheduling plan. Court staff mailed these documents to Geraldо Mena at the address listed on the docket. None was returned as undeliverable.

Mena was representing himself and had been allowed to proceed without paying filing fees. He did not attend the October 21 conference and provided no excuse or explanation. The court rescheduled the conference for November 19, 2020, and expressly warned that another failure to appear would lead the court to deem him to have abandoned the case and dismiss it for failure to prosecute or comply with court orders. The rescheduling order also was mailed to Mena and was not returned as undeliverable.

Ruling

Mena again failed to appear at the November 19 conference, without excuse or explanation. Applying the factors identified in Lucas v. Miles, the court deemed him to have abandoned the case and dismissed the case with prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute and failure to comply with court orders.

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. It therefore denied Mena permission to proceed without paying fees for purposes of an appeal. The Clerk was instructed to close the case, and chambers was directed to mail Mena a copy of the order.