United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
F. ROBBENHAAR UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court sua sponte. For
the reasons set forth below, the Court recommends that
Plaintiff's Complaint be DISMISSED WITHOUT
9, 2018, Plaintiff filed a Complaint against the Social
Security Commissioner related to the Commissioner's
decision denying Plaintiff's claim for Title II
disability insurance benefits and Title XVI supplemental
security income benefits. Doc. 1. The case was assigned to
Magistrate Judge Kevin R. Sweazea. On November 14, 2018,
Defendant filed an Answer. Doc. 13. On November 15, 2018,
Judge Sweazea entered an Order Setting Briefing Schedule and
Plaintiff's Motion to Remand was due on January 11, 2019.
January 11, 2019, the case was reassigned to United States
District Judge James A. Parker and United States Magistrate
Judge Laura Fashing as the trial and pretrial judges. Doc.
19. On January 16, 2019, Judge Parker entered an Order of
Reference referring the case to Judge Fashing. Doc. 21. On
January 17, 2019, Judge Fashing entered an Order Extending
Briefing Schedule, and Plaintiff's Motion to Remand was
due on February 5, 2019. Doc. 22.
March 12, 2019, Judge Fashing entered an Order to Show Cause
because Plaintiff failed to file his Motion to Remand by the
deadline set forth in her Order Extending Briefing Schedule.
Doc. 23. Judge Fashing ordered Plaintiff to show cause by
March 26, 2019, why his case should not be dismissed for
failure to comply with the Court's Order Extending
Briefing Schedule. Id. On March 22, 2019, Plaintiff
filed a response to the Order to Show Cause. Doc. 24.
April 29, 2019, Judge Fashing held a hearing on the Order to
Show Cause. Doc. 27. Plaintiff appeared pro se.
Id. Kathryn Bostwick appeared on behalf of
Defendant. Id. Plaintiff explained he was unable to
secure legal counsel. Id. The Court provided
Plaintiff with telephone numbers for two organizations that
could help Plaintiff find an attorney. Id.
Plaintiff agreed to contact them. Id. The Court
agreed to quash the Order to Show Cause and gave Plaintiff an
additional thirty days, through May 29, 2019, to find an
attorney. Id. The Court stated that
[i]f an attorney enters an appearance, the Court will set a
scheduling order for the briefing on this case. If an
attorney does not enter on
appearance by May 29, 2019, the Court will still set a
scheduling order, and [Plaintiff] will have to proceed pro se
and file his ow motion to reverse/remand.
Id. (emphasis in original). Judge Fashing advised
Plaintiff that if he did not file a motion to remand on time,
she would recommend that his case be dismissed. Id.
The Court noted that Plaintiff stated he understood the
Court's instructions and had no questions. Id.
1, 2019, the case was reassigned to Magistrate Judge John F.
Robbenhaar as the pretrial judge. Doc. 29. On June 3, 2019,
Judge Robbenhaar entered an Order Setting Briefing Schedule
pursuant to Judge Fashing's instructions, and Plaintiffs
Motion to Remand was due July 3, 2019. Doc. 30. Plaintiff has
failed to file his motion.
Plaintiff has failed to comply with the Court's Briefing
Schedule (Doc. 30), and because Judge Fashing advised
Plaintiff that his failure to file a motion to remand on time
would result in recommending that his case be dismissed (Doc.
27), the Court recommends that Plaintiffs Complaint be
dismissed without prejudice for failure to prosecute.
AdvantEdge Business Group v. Thomas E. Mestmaker &
Assoc, 552 F.3d 1233, 1236 (10th Cir. 2009)
(“[a] district court undoubtedly has discretion to
sanction a party for failing to prosecute or defend a case,
or for failing to comply with local or federal procedural
rules”) (quoting Reed v. Bennett, 312 F.3d
1190, 1195 (10th Cir. 2002)); see also Nasious
v. Two Unknown B.I.C.E Agents, 492 F.3d 1158, 1161
(10th Cir. 2007) (when dismissing a case without
prejudice, “a district court may, without abusing its
discretion, enter such an order without attention to any
foregoing reasons, the Court finds that Plaintiff has failed
to comply with the Court's Briefing Schedule and to
prosecute his case. The Court, therefore, recommends that