Foster v. CVS AL Distribution, LLC et al, No. 2:2016cv00795 - Document 14 (M.D. Ala. 2017)

Court Description: OPINION. Signed by Honorable Judge Myron H. Thompson on 1/5/17. (djy, )

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Foster v. CVS AL Distribution, LLC et al Doc. 14 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION WALTER FOSTER, ) ) ) ) ) ) ) ) ) ) Plaintiff, v. CVS AL DISTRIBUTION, LLC, et al., Defendants. CIVIL ACTION NO. 2:16cv795-MHT (WO) OPINION On November 16, 2016, the United States Magistrate Judge held a hearing on the motions to withdraw by the plaintiff’s counsel (doc. nos. 7 & 9) in light of the death of the plaintiff (doc. no. 8). hearing were counsel Foster, Jr., who for both indicated he Present at the sides was and in Mr. Walter attendance on behalf of the estate--though an executor has not yet been appointed through probate explained that and the estate proceedings. the estate could had The not not yet passed magistrate proceed judge without attorney representation and instructed Mr. Foster that he and any other interested December 30, 2016, either represent the estate in party statement indicating to this they would secure lawsuit were have until counsel or to unable to file to a obtain counsel, which could then lead to the dismissal without prejudice of this lawsuit. Mr. Foster was specifically cautioned that the failure to file a response would be treated as an abandonment of the claims and a failure to prosecute. written order The (doc. magistrate no. 11) judge then summarizing issued the a oral instructions given at the hearing and instructing the former plaintiff’s counsel to provide Mr. Foster and any other known family members a copy of the order. The deadline for response response has been filed. has now passed, and no In short, given the current circumstances, there is no longer a plaintiff. The Supreme Court has long held that courts may dismiss actions under Rule 41(b) sua sponte. v. Wabash R. (interpreting Co., Rule 370 U.S. 41(b) to 2 626, 630-32 authorize sua See Link (1962) sponte dismissals for failure to prosecute or comply with the court’s order). *** Accordingly, without prejudice Procedure 41(b). the complaint pursuant An to will Federal appropriate be Rule judgment dismissed of Civil will be entered. DONE, this the 5th day of January, 2017. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE
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