United States District Court, D. South Dakota, Southern Division
ARTHUR B. ALPHIN, and ESTATE OF ELAINE MARIE ALPHIN, Plaintiffs,
GOOSMANN LAW FIRM, and MARIE H. RUETTGERS, Defendants.
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
Arthur B. Alphin and Estate of Elaine Marie Alphin filed this
action in state court alleging legal malpractice against
Goosmann Law Firm and Marie H. Ruettgers. Docs. 1-1, 1-2.
Plaintiff Arthur Alphin is proceeding pro se, both for
himself and as the representative of the Estate of Elaine
Marie Alphin. Based on diversity of citizenship under 28
U.S.C. § 1332, Defendants removed the action to this
Court pursuant to 28 U.S.C. §§ 1441(a) and 1446.
Doc. 1. After Defendants answered the complaint on June 27,
2018, this Court issued an Order for Discovery Report and
Scheduling Information, on June 28, 2018. Doc. 6. Alphin
filed a motion on July 30, 2018, seeking a 30-day continuance
in the deadline for a Rule 26(f) meeting. Doc. 7. This Court
entered an order granting that motion, Doc. 9, enlarging the
time for the discovery report and scheduling information to
August 24, 2018, and requiring that if the parties failed to
have the Rule 26(f) meeting by that date, then they should
submit separate responses to the Court by September 7, 2018.
Defendants complied with the Court's order by submitting
their discovery report on September 4, 2018, Doc. 10, and
this Court then entered a Rule 16 Scheduling Order on
September 18, 2018. Doc. 11. Neither Alphin nor anyone on
behalf of the Plaintiffs have filed any further pleadings
since the July 31, 2018 motion seeking a continuance in the
time for the Rule 26(f) meeting.
one year after this Court entered its scheduling order,
Defendants filed a motion to dismiss based on Rule 41(b) of
the Federal Rules of Civil Procedure. Doc. 13. With that
motion, the Defendants filed an affidavit, Doc. 14, and a
memorandum of law, Doc. 15. In the affidavit, defense counsel
explains her efforts to schedule a Rule 26(f) meeting with
Alphin, how he initially asked for additional time to get an
attorney, how defense counsel chose not to object to
Alphin's request for a continuance in the time for the
Rule 26(f) meeting, and how Alphin in August of 2018 did not
respond to multiple efforts from defense counsel to conduct a
Rule 26(f) meeting or agree to a proposed discovery plan.
Doc. 14 at ¶¶ 3-7. Defense counsel in the affidavit
explains how the Defendants served their pre-discovery
disclosure on Alphin on November 30, 2018, consistent with
the discovery order, including a USB thumb drive containing
9, 237 pages of documents potentially relevant to the claims
and defenses, and producing 3, 027 pages constituting the
case files in the cases specifically mentioned in
Plaintiffs' complaint. That is, the Defendants
voluntarily produced 12, 264 pages of documents at the end of
November of 2018, organizing and sorting them by date and
paginating the electronic material. Doc. 14 at ¶ 10.
Alphin, despite reminders from defense counsel, never
provided any pre-discovery disclosures. Doc. 14 at
¶¶ 11- 12.
this being an attorney malpractice case, Alphin has made no
disclosure of any expert witness, despite the January 18,
2019 deadline to do so having passed. Doc. 14 at ¶ 12.
Rather, Alphin has ignored communications from defense
counsel and not responded to those communications. Doc. 14 at
¶¶ 11-15. This was not a result of a bad address,
as none of the letters sent by defense counsel to Alphin were
returned as undeliverable and none of the emails to Alphin by
defense counsel were rejected. Doc. 14 at ¶ 15. At this
point, all deadlines contained in this Court's Rule 16
Scheduling Order have elapsed, with the discovery deadline
having run on September 20, 2019. Doc. 11. Alphin has not
participated in discovery, and indeed did not comply with the
pre-discovery disclosure requirement in this Court's Rule
16 Scheduling Order. Plaintiffs have filed no response to the
motion to dismiss, affidavit, and brief within the twenty-one
days set by this Court's Local Rules to do so. D.S.D.
Civ. L.R. 7.LB.
this Court could have already dismissed this case based on
Rule 41(b) of the Federal Rules of Civil Procedure, this
Court chose to enter an order regarding Defendants'
motion to dismiss, Doc. 16, on September 26, 2019, which
ordered "that if Plaintiffs do not file a response brief
within 14 calendar days of this Order, the motion to dismiss
will be granted." Plaintiffs did not file a response
brief within 14 days of the order. However, on October 7,
2019, the clerk of court's letter to Alphin was returned
as undeliverable. Doc. 17. Based on a phone call received
from one of the attorneys for Defendants, the clerk of court
then mailed the order anew to the more current address that
defense counsel had for Alphin.
41(b) of the Federal Rules of Civil Procedure provides:
If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the
action or any claim against it. Unless the dismissal order
states otherwise, a dismissal under this subdivision (b) and
any dismissal not under this rule-except one for lack of
jurisdiction, improper venue, or failure to join a party
under Rule 19-operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b). The decision whether to dismiss an
action based on a plaintiffs failure to prosecute or comply
with a court order or follow the rules is committed to the
sound discretion of the court. Ellefson v. Kenstler,
No. Civ. 14-5001-JLV, 2014 WL 4385548, at *2 (D.S.D. Sep. 4,
2014); see also Link v. Wabash R.R. Co.. 370 U.S.
626, 630-33 (1962) (finding a district court may dismiss an
action under Rule 41(b) on its own initiative and without
advanced notice or hearing being required). A plaintiff
proceeding pro se, of course, still has an obligation to
follow the Federal Rules of Civil Procedure and this
Court's Local Rules. Ackra Direct Mkgt. Corp. v.
Fingerhut Corp.. 86 F.3d 852, 856 (8th Cir. 1996);
Boyce v. Interbake Foods. No. Civ. 09-4138-KES, 2011
WL 3843948, at *4 (D.S.D. Aug. 26, 2011). The Order for
Discovery Report and Scheduling Information, Doc. 6, and the
Rule 16 Scheduling Order, Doc. 11, are of course orders
entered by this Court and incorporate obligations contained
under the Federal Rules of Civil Procedure in, among other
rules, Rule 26. Pro se litigants are equally bound by such
rules and receive the same treatment under the rules as do
parties represented by licensed counsel. Lindstedt v.
City of Granby, 238 F.3d 933, 937 (8th Cir. 2000) (per
curiam). Plaintiffs plainly have failed to comply with this
Court's orders and rules and the Federal Rules of Civil
Procedure with regard to engaging in a Rule 26(f) meeting,
providing the initial pre-discovery disclosures, or
participating in discovery in any way. Moreover, Plaintiffs
have failed to respond within the twenty-one days set by
Local Rule to the motion to dismiss and, as of yet, have not
responded even after the Court's order dated September
26, 2019, which, in fairness, Alphin might be just receiving
as the Court writes this opinion and order.
is an added shortcoming in Plaintiffs' case, particularly
evident now that all discovery deadlines under the Rule 16
Scheduling Order have run. Plaintiffs' cause of action is
for legal malpractice. Under South Dakota law, which would
govern in this diversity jurisdiction case where the
relationship between the Plaintiffs and the Defendants
centered in South Dakota, a legal malpractice claim most
often necessitates an expert opinion that there was legal
malpractice. Zhang v. Rasmus, 932 N.W.2d 153, 162
stated above, a dismissal under Rule 41(b) is considered an
adjudication on the merits, unless the court specifies
otherwise. The ten days from September 26, 2019, that the
Court granted in its order regarding motion to dismiss, Doc.
16, have run, but it appears that the clerk of court"
sent the order to an outdated address of Alphin. Accordingly,
in fairness to Plaintiffs, this Court will make its dismissal
without prejudice to Plaintiffs filing a motion, duly
supported by affidavit and legal argument in a brief, to
reconsider the dismissal and reopen the case within
twenty-one days of the date of this opinion and order. If
there is no such motion filed or ruling to the contrary from
the Court, this dismissal shall then be on the merits
consistent with Rule 41(b).
it is hereby
that Defendants' Motion to Dismiss, Doc. 13, is granted,
that the dismissal of the case is without prejudice to
Plaintiffs refiling within twenty-one days of the date on
this opinion and order a motion to reconsider and reinstate
the case duly supported by affidavit and briefs, and that if
no such motion is filed and no order to the contrary is
entered by this Court, ...