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Conway v. M/V Vantage

United States District Court, S.D. Alabama, Southern Division

February 20, 2018

RICHARD WILLIAM CONWAY, etc., et al., Plaintiffs,
v.
M/V VANTAGE, in rem, et al., Defendants.

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE.

         Plaintiffs initially filed a civil action in this Court on October 20, 2017 (see Doc. 1); however, because the complaint and motion to proceed without prepayment of fees were combined into one document, the Plaintiffs were ordered to file an in forma pauperis motion on this Court's form and a separate pleading entitled Amended Complaint (see Doc. 3). Although the Plaintiffs did not initially comply with this Order (compare Id. with Docs. 4-7), once they were again ordered to file the foregoing documents (see Doc. 8, at 6-7 ("Plaintiffs ... are AGAIN ORDERED to file, now by not later than January 11, 2018, a motion to proceed without prepayment of fees on this Court's form and a separate pleading entitled Amended Complaint that comports with the guidance given in the undersigned's October 31, 2017 Order[.]")), the Plaintiffs filed a motion to proceed in admiralty court (Doc. 9), which was construed as the Amended Complaint (Doc. 11), and docketed as such (Doc. 12), and Plaintiff Richard William Conway filed a motion for leave to proceed without prepayment of fees (Doc. 10). Conway's in forma pauperis motion (id.) was denied on January 18, 2018 (Doc. 11), and the Plaintiffs were ordered to pay the $400.00 filing fee by not later than February 8, 2018. This action now has been referred to the undersigned, in accordance with 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a)(2)(S), for appropriate action. For the reasons stated herein, it is recommended that the Court dismiss this action, without prejudice, based upon the Plaintiffs failure to prosecute this action and comply with the Court's order dated January 18, 2018 (Doc. 11).

         By Orders dated October 31, 2017 (Doc. 3), and December 11, 2017 (Doc. 8), the Plaintiffs were instructed to file a motion to proceed without prepayment of fees on this Court's form (Doc. 3, at 1; Doc. 8, at 6-7); however, when this Court's form was finally completed and filed, on January 11, 2018 (Doc. 10), it contained information relative to the financial condition of only Plaintiff Richard Conway, and was filed only by Conway, though the amended complaint (see Docs. 9 & 12) clearly named The Maritime Privateers Trust as a Plaintiff seeking damages (compare Id. with Doc. 11, at 2-3). Therefore, the motion to proceed without prepayment of fees was denied, in part, because it did not detail the finances of the Trust (id. at 3), as Plaintiff was instructed (compare Id. with Doc. 3, at 1 n.1 & Doc. 8, at 2 n.3). The motion was also denied with respect to Plaintiff Conway because the information supplied by Conway established that he possessed the means to pay the $400.00 filing fee without being deprived of the basic necessities of life. (Doc. 11, at 3.) Thus, the undersigned ordered the Plaintiffs to pay the filing fee and other related costs of this action by not later than February 8, 2018. (Id. at 4.) Plaintiffs were forewarned that their "failure to pay the $400.00 filing fee and other related costs by February 8, 2018 may result in entry of a report and recommendation that their action be dismissed without prejudice for failure to comply with this Court's order that they pay the filing fee and related costs." (Id.) To date, Plaintiffs have not complied with this Court's order to pay the $400.00 filing fee and related costs. (See Docket Sheet.)

         An action may be dismissed if plaintiffs fail to prosecute it or if they fail to comply with any court order. Fed.R.Civ.P. 41(b); see also Link v. Wabash Railroad Co., 370 U.S. 626, 630-631, 82 S.Ct. 1386, 1388-1389, 8 L.Ed.2d 734 (1962) (holding district courts have the power to sua sponte dismiss a cause of action for failure to prosecute); World Thrust Films, Inc. v. International Family Entertainment, Inc., 41 F.3d 1454, 1456 (11th Cir. 1995) ("'A district court has authority under Federal Rule[] of Civil Procedure 41(b) to dismiss actions for failure to comply with local rules.'").

         In this case, Plaintiffs have not responded to the Court's order dated January 18, 2018, instructing them to pay the $400.00 filing fee, and other related costs, not later than February 8, 2018. (Compare Docket Sheet with Doc. 11.) Therefore, it is recommended that the Court DISMISS WITHOUT PREJUDICE the Plaintiffs' civil action, pursuant to Fed.R.Civ.P. 41(b), due to their failure to prosecute this action by complying with this Court's lawful order.

         NOTICE OF RIGHT TO FILE OBJECTIONS

         A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); S.D. Ala. GenLR 72(c)(1) & (2). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is ...


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