Free Motion to Dismiss for Lack of Prosecution - District Court of Delaware - Delaware

Case 1:07-cv-00261-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) MICHAEL KEVIN HOFFMAN, ) ) Plaintiff, ) ) v. ) ) CORRECTIONAL MEDICAL SERVICES ) and ROBERT GEORGE, ) ) Defendants. )

C.A. No. 07-261-JJF Jury Trial Demanded

MOTION TO DISMISS FOR FAILURE TO PROSECUTE PURSUANT TO FED. R. CIV. P. 41(b) AND LOCAL RULE 41.1

Defendant Robert George ("Defendant George"), by and through undersigned counsel, respectfully requests this Honorable Court to enter an order dismissing the instant action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b) and Local Rule 41.1. In support of his position, Defendant George represents as follows: 1. Michael Kevin Hoffman (APlaintiff@) is a former inmate who was incarcerated

under the supervision of the Delaware Department of Correction (ADOC@) from January 18, 2005 to August 22, 2007. During this time period, he was housed at seven different DOC facilities, including the Sussex Violation of Probation Center (ASVOP") in Georgetown, Delaware. 2. On or about May 15, 2007, the Plaintiff filed a complaint with leave to proceed in

forma pauperis against numerous DOC and prison medical personnel, alleging Eighth Amendment violations of their duty to provide him with adequate medical care during his incarceration. [D.I.2]. Plaintiff moved to amend his Complaint on June 19, 2007. [D.I.13]. 3. In a Memorandum Opinion and Order, this Court dismissed all DOC and medical

defendants pursuant to 28 U.S.C. §§1915(e)(2)(B) and 1915A(b)(1) on July 3, 2007, with the

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exceptions of Defendant George (the former Warden of SVOP) and medical provider Correctional Medical Services ("CMS"). [D.I.17,18]. The Court then recognized D.I.13 as Plaintiff's Amended Complaint. 4. On July 20, 2007, before any responsive pleadings had been filed in this matter,

Plaintiff filed discovery requests for Production of Documents and Interrogatories. [D.I.24,25]. 5. On July 23, 2007, before any responsive pleadings had been filed in this matter,

Plaintiff filed a Motion for Appointment of Counsel. [D.I.26]. On August 1, 2007, Plaintiff's Motion for Appointment of Counsel was denied. [D.I.28]. 6. Plaintiff was released from the DOC on August 22, 2007. On September 4, 2007,

Plaintiff informed the Court of his new mailing address in Bear, Delaware. [D.I.32]. 7. On September 6, 2007, the Clerk of Court docketed Defendant George's waiver

of service. [D.I.31]. 8. On October 1, 2007, Plaintiff advised the Court of his second change of address to

Philadelphia, Pennsylvania. [D.I.34]. 9. Defendant George filed his Answer to the Amended Complaint on October 22,

2007. [D.I.38]. 10. Defendant CMS filed a Motion to Dismiss for Insufficiency of Service of Process

on January 15, 2008. [D.I.#39]. The following day, the Court established a Briefing Schedule, ordering Plaintiff to file an Answering Brief on or before February 4, 2008. To date, Plaintiff has not responded. 11. Rule 41(b) ("Dismissal of Actions; Involuntary Dismissal") of the Federal Rules

of Civil Procedure states: For failure of the plaintiff to prosecute or to comply with these 2

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rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. 12. Local Rule 41.1 states that "in each case pending wherein no action has been

taken for a period of 3 months, the Court may, on its own or upon application of any party, and after reasonable notice, enter an order dismissing such case unless good reason for the inaction is given." Here, more than the 3 months (92 days) established by Local Rule 41.1 has elapsed. 210 days have passed since Plaintiff made his last filing (in D.I. 34), informing the Court of his new address. 280 days have passed since Plaintiff's last motion (for appointment of counsel) was filed. [D.I.26]. Plaintiff has also failed to comply with the Court's briefing schedule on Defendant CMS's Motion to Dismiss for Insufficiency of Service of Process. 13. Local Rule 41.1 also states that "after such application [for dismissal] or notice

from the Court, no application for a continuance or any proceeding taken under the discovery rules shall be deemed to toll the case unless good reason for the inaction is given." Therefore, Plaintiff cannot now proceed with litigating his case to cure the period of inactivity that has transpired. 14. Plaintiff=s action should be dismissed pursuant to Fed. Civ. Pro. R. 41(b) and

Local Rule 41.1 for failure to prosecute. While "dismissal is a harsh remedy to which a court should resort only in extreme cases, as `the policy of the law is to favor the hearing of a litigant=s claim on the merits,'" Courts may dismiss cases with prejudice for want of prosecution "to achieve the orderly and expeditious disposition of cases." Marshall v. Sielaff, 492 F. 2d 917 (3d Cir. 1974)(quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)); see also Eash v. 3

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Riggins Trucking Inc., 757 F. 2d 557, 561, 564 (3d Cir. 1985)(in banc). WHEREFORE, for the foregoing reasons, Defendant George respectfully requests this Honorable Court to dismiss Plaintiff=s action for failure to prosecute, pursuant to Fed. R. Civ. P. 41(b) and Local Rule of Civil Procedure 41.1.

STATE OF DELAWARE DEPARTMENT OF JUSTICE

/s/ Catherine Damavandi_______ Catherine Damavandi (ID # 3823) Deputy Attorney General Delaware Department of Justice Carvel State Office Building 820 N. French Street, 6th Floor Wilmington, DE 19801 [email protected] (302) 577-8400 Attorney for Defendant Robert George

Dated: April 28, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) Plaintiff, ) ) v. ) ) CORRECTIONAL MEDICAL SERVICES ) and ROBERT GEORGE, ) ) Defendants. ) MICHAEL KEVIN HOFFMAN,

C.A. No. 07-261-JJF Jury Trial Demanded

ORDER WHEREAS, Plaintiff has failed to litigate his claims; and WHEREAS, the last filing by the Plaintiff in this case was in October 1, 2007, more than three months ago; and WHEREAS, Plaintiff has failed to show cause why this case should not be dismissed for failure to prosecute; IT IS SO ORDERED this day of , 2008, that

Defendant Robert George's Motion to Dismiss for Failure to Prosecute is hereby GRANTED.

________________________ Judge Joseph J. Farnan, Jr. United States District Court Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICHAEL KEVIN HOFFMAN, ) ) Plaintiff, ) ) v. ) ) CORRECTIONAL MEDICAL SERVICES ) and ROBERT GEORGE, ) ) Defendants. )

C.A. No. 07-261-JJF Jury Trial Demanded

CERTIFICATE OF SERVI CE I hereby certify that on April 28, 2008, I electronically filed Defendant Robert George's Motion to Dismiss for Failure to Prosecute Pursuant to Fed.Civ.P.Rule 41(b) with the Clerk of Court using CM/ECF, which will automatically send notice to Mr. James Drnec, Esq., counsel for Defendant CMS. I further certify that on April 28, 2008, I caused the within document to be mailed by United States Postal Service to the following non-registered party: Michael Kevin Hoffman Michael Kevin Hoffman, Pro se 5245 Burton Street, Apt. 2 Philadelphia, PA 19124

STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Catherine Damavandi_______ Catherine Damavandi (ID # 3823) Deputy Attorney General Delaware Department of Justice Carvel State Office Building 820 N. French Street, 6th Floor Wilmington, DE 19801 [email protected] (302) 577-8400 Attorney for Defendant Robert George 6