Pena v. Zazzle, Inc.

Background

Joel Pena filed a complaint against Zazzle, Inc., RedBubble, Inc., Spreadshirt, Inc., TP Apparel, LLC, and Teespring, LLC. Pena was representing himself. The court issued summonses on July 21, 2021, and ordered him to serve each defendant within 90 days. The court warned that failing to serve the defendants or request more time could lead to dismissal for failure to prosecute, meaning failure to move the case forward.

Pena did not file affidavits showing service by the October 19, 2021 deadline. On November 29, 2021, Magistrate Judge Lehrburger gave him one final opportunity to serve the defendants by December 20, 2021, again warning that failure to do so would result in dismissal. Pena did not file affidavits of service by that deadline. After the court ordered him to appear and explain why the case should not be dismissed, he did not appear at the February 1, 2022 hearing or otherwise contact the court.

Recommendation and Review

Judge Lehrburger recommended dismissing the case without prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute. The parties were told they had 14 days to object to the recommendation, but neither party filed objections. Because there were no objections, Judge Caproni reviewed the recommendation for clear error—an obvious mistake apparent from the record—and found none.

Ruling

Judge Caproni adopted the recommendation in full and dismissed the action without prejudice for failure to prosecute. The court stated that the lack of objections, after adequate warning, precluded appellate review. It therefore certified that any appeal would not be taken in good faith and denied permission to proceed without paying fees for an appeal. The clerk was directed to close the case and mail the order to Pena.