United States District Court, D. Nebraska
MEMORANDUM AND ORDER OF DISMISSAL
Smith Camp Chief United States District Judge.
matter is before the Court on the Motion to Dismiss Pro Se
Intervenors for Failure to Comply with Court Orders, ECF No.
896, filed by Defendant JBS USA, LLC (“JBS”).
Also before the Court is the Motion to Withdraw, ECF No. 898,
filed by Plaintiff Nimo Mohamed. For the reasons stated
below, the Motions will be granted, and this case will be
March 6, 2017, Phillip J. Robertson of CAIR-Chicago, counsel
for the Farhan Abdi, et al., Plaintiff/Intervenors
(“CAIR”), filed a Motion to Withdraw, seeking to
withdraw as attorneys for 13 Plaintiff/Intervenors: Farah M.
Farah; Nimo Mohamed; Farhan Abdi; Rahma Mohamed Abdi;
Abdirizaq Abdulle; Said Ali Ahmed; Yasin Ahmed; Yusuf Dulane;
Amina Farah; Saynab Farah; Amina Gelle; Abdighani Muse; and
Mukhtar Omar (collectively the
“Plaintiff-Intervenors”). ECF No. 893. CAIR noted
that it had attempted to contact the Plaintiff-Intervenors
for several months but had not been able to communicate with
them. ECF No. 893, Page ID 17469.
Robertson and CAIR were granted leave to withdraw as counsel
for the Plaintiff-Intervenors. ECF No. 894. The Court ordered
CAIR to serve copies of the Court's Order immediately on
each of the 13 Plaintiff-Intervenors. Id., Page ID
17475. The Court also directed that CAIR file a proof of
service with the Court, showing compliance with the Order and
listing the names and addresses of the persons to whom the
notice was sent. Id., Page ID 17475-76.
March 14, 2017, CAIR-Chicago filed its Proof of Service,
listing the 13 Plaintiff-Intervenors who had been served, via
U.S. Certified Mail, with the Court's Order of March 7,
2017. ECF No. 895. Upon the filing of this Proof of Service,
the Plaintiff-Intervenors were deemed to be proceeding pro
se. See ECF No. 894, Page ID 17475. In the absence
of substitute counsel entering a written appearance, each
Plaintiff-Intervenor was directed to file a written notice
with the Clerk of the Court of his/her current address and
telephone number within five business days of being served
with the Order. Id., Page ID 17475. Thus, on or
before March 22, 2017, each of the 13 Plaintiff-Intervenors
was required to file a written notice with the Clerk of
his/her current address and telephone number.
March 31, 2017, JBS filed its Motion to Dismiss the
Plaintiff-Intervenors. On April 5, 2017, Plaintiff-Intervenor
Nimo Abdirizak Mohamed filed a document styled as a Request
to Withdraw, indicating that she wished to remove her name
from the lawsuit. ECF No. 898, Page ID 17491. As of the date
of this Memorandum and Order, no other Plaintiff-Intervenor
has filed written notice, nor has any party objected to
JBS's Motion to Dismiss.
Dismissal of the 13 Remaining Plaintiff-Intervenors
Nimo Mohamed was the only remaining Plaintiff-Intervenor to
file a response to the Court's orders. The Court deems
the document filed ECF No. 898 as a plaintiff's motion to
dismiss, under Federal Rule of Civil Procedure 41(a)(2). The
Court finds that the motion should be granted, and the
above-captioned action should be dismissed with prejudice on
that basis as to Plaintiff-Intervenor Nimo Mohamed.
the other Plaintiff-Intervenors, the Court will dismiss their
claims for failure to comply with the Court's orders.
Federal Rule of Civil Procedure 41(b) permits a defendant to
move to dismiss any claims asserted against it by a plaintiff
who “fails to prosecute or to comply with these rules
or a court order . . . .” Similarly, NECivR 41.2
provides, “[a]t any time, a case not being prosecuted
with reasonable diligence may be dismissed for lack of
prosecution.” Here, the failure of the other
Plaintiff-Intervenors to comply with the Court's Amended
Order, ECF No. 894, is grounds for dismissal of their
remaining claims. See, e.g., Aziz v.
Wright, 34 F.3d 587, 589 (8th Cir. 1994) (“An
action may be dismissed pursuant to Rule 41(b) if a plaintiff
has failed to comply with any order of the court”);
Henderson v. Renaissance Grand Hotel, 267 Fed.Appx.
496 (8th Cir 2008) (affirming dismissal of plaintiff's
Title VII action for failure to prosecute after finding that
plaintiff failed to comply with court orders in a timely
for failure to comply with a court order is appropriate
regardless of whether the plaintiff is represented by
counsel. See, e.g., Brantley v. BNSF Ry.
Co., No. 4:12CV3215, 2014 WL 840641, *3 (D. Neb. March
4, 2014) (dismissing pro se litigant's case for failing
to comply with court's discovery orders); Dahl v.
Kanawha Inv. Holding Co., 161 F.R.D. 673, 678 (N.D. Iowa
1995) (“Pro se litigants are not excused from complying
with court orders or substantive and procedural law”).
Where the Court orders a pro se plaintiff to file an update
regarding his “intention to continue prosecution of his
claims, ” failure to file such an update “or
failure to do so in a timely manner will be deemed failure to
prosecute . . . and may be deemed willful disobedience of a
court order, resulting in dismissal . . . pursuant to
Fed.R.Civ.P. 41(b).” Hancock v. Thalacker, 933
F.Supp. 1449, 1461 (N.D. Iowa 1996). Although a “pro se
litigant should receive meaningful notice of what is expected
of him, ” he is required to, at the very least, attempt
in good faith to comply with the Court's orders.
Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984)
(dismissing pro se plaintiff's case pursuant to Rule
41(b) after he failed to comply with the court's pretrial
orders to clarify his claims). Because the 13
Plaintiff-Intervenors have not complied with the Court's
Order, pursuant to Fed.R.Civ.P. 41(b) and NECivR 41.2, their
remaining claims will be dismissed, with prejudice.
Disposition of Case
remaining at the Phase II stage of proceedings included the
EEOC and several individual Plaintiff-Intervenors. In Phase
II, the Plaintiff-Intervenors were divided into three
categories, based on their representation by different
counsel, or no counsel. The first category consisted of
Plaintiff-Intervenors Abdi Mohamed, et al. (“First
Intervenors”). The second category consisted of
Plaintiff-Intervenors Farhan Abdi, et al. (“Second
Intervenors”). The third category consisted of
Plaintiff-Intervenors no longer represented by counsel
(“Pro Se Intervenors”). On September 21, 2016,
the Court dismissed, with prejudice, all claims asserted by
the EEOC ...