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Luster v. Lowery

United States District Court, E.D. Virginia, Alexandria Division

July 29, 2016

JEFFREY LUSTER, Plaintiff,
v.
JONATHAN D. LOWERY, Defendant.

          Jeffrey Luster, Plaintiff, Pro Se.

          Jonathan D. Lowery, Defendant, represented by David Isaac Klass, Office of the County Attorney - Fairfax County & Kimberly Pace Baucom, Fairfax County Office of the County Attorney.

          PROPOSED FINDINGS OF FACT AND RECOMMENDATIONS

          JOHN F. ANDERSON, Magistrate Judge.

         This matter is before the court on defendant Jonathan D. Lowery's ("Lowery" or "defendant") Motion to Dismiss (Docket no. 45). Pursuant to 28 U.S.C. § 636(b)(1)(C), the undersigned magistrate judge is fding with the court his proposed findings of fact and recommendations, a copy of which will be provided to all interested parties.

         Procedural Background

         Plaintiff filed the complaint in this action on December 8, 2015. (Docket no. 1) ("Compl."). The complaint named Lowery, Universal Protection Service GP. Inc., Universal Protection Service LLC, Taubman Centers Inc., Taubman Company LLC, and LT Fair Oaks LLC (collectively the "defendants") as defendants in this matter. (Compl. at 1-2). On February 10, 2016, plaintiff's then-counsel Jonathan A. Halperin and Andrew Lucchetti ("plaintiff's previous counsel") file a Motion to Withdraw as Counsel and for Extension of Time to Serve the Summons. (Docket no. 2). On March 2, 2016, the District Judge granted plaintiff's previous counsel's motion and ordered that the now pro se plaintiff had thirty days to effect service of process on the defendants. (Docket no. 5). Thereafter, Lowery, Universal Protection Service GP. Inc., Taubman Company LLC, and LT Fair Oaks LLC were timely served with a copy of the complaint and summonses in this action. (Docket no. 6).

         On March 17, 2016, Taubman Company LLC, Universal Protection Service GP. Inc., and Universal Protection Service LLC filed motions to dismiss. (Docket nos. 10, 13, 15). On April 8, 2016, the District Judge entered an order that dismissed defendant Universal Protection Service GP. Inc. from this action and also dismissed all claims against defendants Universal Protection Service LLC, Taubman Centers, Inc., Taubman Company LLC, and LT Fair Oaks LLC. (Docket no. 26). The District Judge's Order gave plaintiff fourteen days to amend Counts 3, 4, and 5 against Universal Protection Service LLC, Taubman Centers, Inc., Taubman Company LLC, and LT Fair Oaks LLC. ( Id. ).

         On April 20, 2016, the pro se plaintiff, Lowery's counsel, and counsel for Taubman Company LLC, appeared before the undersigned for an initial pretrial conference. (Docket no. 28). Also on that date, the undersigned entered a Rule 16(b) Scheduling Order that, inter alia, directed that all discovery in this matter shall be concluded by August 12, 2016 and all Fed.R.Civ.P. 26(a)(1) disclosures shall be completed by May 6, 2016. (Docket no. 29). On April 22, 2016, upon receiving a letter from the pro se plaintiff requesting additional time to file an amended complaint (Docket no. 30), the undersigned extended the time period for plaintiff to file an amended complaint in this action to May 2, 2016. (Docket no. 31).

         Plaintiff failed to file an amended complaint in this action. On May 12, 2016, Universal Protection Service LLC filed a Motion for Involuntary Dismissal. (Docket no. 32). On May 20, 2016, Taubman Company LLC filed a Rule 41(b) Motion for Involuntary Dismissal. (Docket no. 35). On June 3, 2016, having found that plaintiff's claims against Universal Protection Service LLC were dismissed by the Court on April 8, 2016, that plaintiff was granted fourteen days to amend his complaint, that additional time was extended on plaintiff's motion, and that no amended complaint was filed, the District Judge granted Universal Protection Service LLC's Motion for Involuntary Dismissal and dismissed this case as to Universal Protection Service LLC. (Docket no. 41). On June 17, 2016, having made the same findings as in the June 3, 2016 order, the District Judge granted Taubman Company LLC's Motion for Involuntary Dismissal and dismissed this case as to Taubman Company LLC. (Docket no. 44). As such, Lowery is the only remaining defendant in this matter.

         On June 3, 2016, Lowery filed a Motion to Compel (Docket no. 38), a memorandum in support (Docket no. 39), and a notice setting a hearing on the motion for June 10, 2016 (Docket no. 40). On that same date, it appearing that the pro se plaintiff was incarcerated at the Fairfax County Adult Detention Center in Fairfax, Virginia, the undersigned entered an order that required any opposition to defendant's Motion to Compel be filed no later than 5:00 p.m. on Tuesday, June 14, 2016 and indicated that defendant's Motion to Compel would thereafter be decided by the undersigned on the papers. (Docket no. 42). Plaintiff did not file an opposition or response to Lowery's motion to compel. Accordingly, having found that plaintiff had failed to object or respond to defendant's First Set of Interrogatories (Docket no. 39-1 at 1-11) and First Requests for Production of Documents (Docket no. 39-1 at 12-20) (collectively "defendant's discovery requests") and also failed to serve initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1), on June 17, 2016, the undersigned granted Lowery's motion to compel. (Docket no. 43). The undersigned ordered plaintiff to provide his initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) and full and complete responses to defendant's discovery requests on or before June 28, 2016. ( Id. ).

         On July 1, 2016, Lowery filed the instant motion to dismiss, an exhibit of Local Civil Rule 7 in support of the motion (Docket no. 45-1), a memorandum in support (Docket no. 46), and a notice setting a hearing on the motion for July 29, 2016 (Docket no. 47). Defendant has not filed a response or opposition to Lowery's motion to dismiss. The instant motion was referred to the undersigned magistrate judge. On July 29, 2016, counsel for defendant Lowery appeared before the undersigned and no one appeared on behalf of the pro se plaintiff.

         Proposed Findings and Recommendations

         Lowery's motion to dismiss argues that plaintiff's complaint against him should be dismissed with prejudice for two principal reasons.

         First, Lowery argues that dismissal pursuant to Rule 37(b) of the Federal Rules of Civil Procedure is warranted because the pro se plaintiff has failed to provide any initial disclosures in this matter and has failed to object or respond to any of Lowery's discovery requests. (Docket no. 46 at 3-5). Accordingly, Lowery argues that the pro se plaintiff has failed to comply with the court's Rule 16(b) Scheduling Order, which directed that all initial disclosures were to be completed by May 6, 2016 (Docket no. 29) and court's June 17, 2016 order granting Lowery's motion to compel, in which the court ordered that the pro se plaintiff shall provide his initial disclosures ...


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