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LaDay v. Volunteer of America

United States District Court, M.D. Louisiana

September 20, 2019

CHRISTOPHER LADAY
v.
VOLUNTEER OF AMERICA

          NOTICE

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE=S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         Pro se Plaintiff Christopher LaDay (“LaDay”) filed his Complaint in this matter on June 27, 2019.[1] The requisite filing fee was not paid at the time the Complaint was filed. On July 1, 2019, the Court ordered LaDay to either pay the $400.00 filing fee or to complete and submit form AO 239 - Application to Proceed in District Court without Prepaying Fees or Costs (“Long Form”) within twenty-one (21) days. The Long Form was attached to the Court's July 1, 2019 Order. The July 1, 2019 Order further advised LaDay that failure to comply with the order may result in dismissal of the Complaint without further notice. The Clerk of Court was instructed to send a copy of the order to LaDay via certified mail to the address listed on PACER, 3233 Annunciation Street, New Orleans, LA 70115.[2] On August 15, 2019 the court received notice that the July 1, 2019 Order that was sent to LaDay via certified mail was returned as unclaimed and unable to forward.[3]

         This matter was then set for a Show Cause Hearing on September 4, 2019 requiring LaDay to personally appear before the undersigned to show cause as to why his claims should not be dismissed for failure to pay the filing fee in the amount of $400.00 or complete and submit the attached Long Form. The Clerk of Court was instructed to send a copy of the order to LaDay via certified mail to the address listed on PACER, 3233 Annunciation Street, New Orleans, LA 70115.[4] In lieu of appearing on September 4 2019, LaDay was allowed to pay the filing fee of $400.00 or complete and submit the Long Form by no later than August 28, 2019.[5] LaDay did not appear for the show cause hearing, nor did he respond to the Show Cause Order.

         Local Civil Rule 41(b)(4) provides that “failure of an attorney or pro se litigant to keep the Court apprised of an address change may be considered cause for dismissal for failure to prosecute, when a notice is returned to a party or the Court for the reason of an incorrect address and no correction is made to the address for a period of thirty days.” Dismissal under this Rule “shall be without prejudice.” Local Civil Rule 41(b)(3). More than thirty days have passed since mail to LaDay was returned as undeliverable and no address correction has been provided.

         Additionally, Fed.R.Civ.P. 41(b) provides for dismissal when a plaintiff “fails to prosecute or to comply with these rules or a court order. . . .” A district court may dismiss a case sua sponte under Rule 41(b) with or without notice to the parties.[6] LaDay has failed to prosecute this action as he has not filed anything into the record since the Complaint almost 3 months ago and he has failed to follow the Court's orders to pay the filing fee or submit the Long Form and to appear for the show cause hearing.

         RECOMMENDATION

         IT IS THE RECOMMENDED that this matter be DISMISSED WITHOUT PREJUDICE, with reinstatement allowed within 30 days for good cause shown, for Plaintiff Christopher LaDay's failure to comply with court orders and failure to keep the Court apprised of an address change. IT IS ORDERED that the Clerk of Court is to provide this Magistrate Judge's Report and Recommendation to Plaintiff Christopher LaDay, via certified mail, return receipt requested to 3233 Annunciation Street, New Orleans, LA 70115.

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Notes:

[1] R. Doc. 1.


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