Kellier v. Berke
- Laura Swain
- 1:22-cv-02504
- U.S. District Court · Southern District of New York
- 2
In Kellier v. Berke, Judge Swain ordered Joshua Kellier to update his address within 30 days or face dismissal without prejudice.
Joshua Kellier, the self-represented plaintiff, was required to update his address to avoid possible dismissal of the action.
What happened
In Kellier v. Berke, Joshua Kellier was representing himself and had listed a Brooklyn post-office box as his address. The court had granted his request to proceed without paying filing fees, but the order was returned as undeliverable.
The court ordered Kellier to update his address within 30 days. It warned that failing to do so would lead to dismissal of the case without prejudice for failure to prosecute, meaning the case would be dismissed but the order did not bar refiling.
Judge Laura Taylor Swain also ruled that any appeal from this order would not be taken in good faith and denied Kellier permission to proceed without paying fees for an appeal.
The detailed version
- Kellier v. Berke · No. 1:22-cv-02504
- Laura Swain
- Aug. 8, 2022
Background
Joshua Kellier, who was representing himself, listed a post-office mailbox in Brooklyn as his address of record. On July 20, 2022, the court granted Kellier’s request to proceed without paying filing fees. The Clerk’s Office mailed that order to him, but the mailing was returned as undeliverable on August 4, 2022.
Court’s analysis
The court explained that Federal Rule of Civil Procedure 41(b) allows a district court to dismiss a case for failure to prosecute after notifying the plaintiff that dismissal may occur. The court also cited authority stating that a plaintiff must notify the court when an address changes and that failing to do so can justify dismissal.
Order
The court directed Kellier to update his address of record within 30 days of the order. It stated that if he failed to comply, the court would dismiss the action without prejudice for failure to prosecute. The court noted that Kellier might not receive the order by mail and said that, if he remained interested in litigating, it was his responsibility to learn the case’s status by contacting or visiting the Clerk’s Office.
Judge Laura Taylor Swain 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 filing fees for an appeal. The opinion did not dismiss the action at this stage.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.