Powers v. Zelenetsky and Associates

Background

The court had previously directed plaintiff William Raymond Powers to seek a clerk’s certificate of default by March 17, 2022, and to file a motion for default judgment by March 31, 2022, provided that defendants Ava Zelenetsky and Zelenetsky and Associates had not answered, moved, or otherwise responded to the complaint. Powers filed a proposed certificate of default on March 28, 2022, but the clerk rejected it as deficient. He therefore missed both deadlines.

On April 8, 2022, the court extended the deadlines to April 15, 2022, for seeking a certificate of default and April 29, 2022, for filing a motion for default judgment. Powers did not comply with that order. The opinion states that, apart from the deficient proposed certificate of default, Powers’s only filings or communications in the case were his complaint and his application to proceed without prepaying fees or costs.

Both prior orders warned in bold type that the case could be dismissed without prejudice under Federal Rule of Civil Procedure 41(b) if Powers failed to meet the deadlines. The orders were mailed to Powers at the address listed on the docket.

Ruling

After considering the factors identified in Lucas v. Miles, the court dismissed the case under Rule 41(b) for failure to prosecute. The opinion’s ruling states that the court “dismisses this case”; although the prior warnings described a possible dismissal without prejudice, the ruling itself does not repeat that qualifier.

The court also certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and denied fee-free status for purposes of an appeal. The clerk was instructed to close the case, and chambers was directed to mail Powers a copy of the order.