Opinion
CIVIL ACTION NO. 1:19-CV-820
08-03-2020
BRIGHT ZENGE, Plaintiff v. MONDELEZ GLOBAL, LLC, Defendant
(CONNER, D.J.) ()
REPORT AND RECOMMENDATION
I. INTRODUCTION
On May 13, 2019, Plaintiff Bright Zenge ("Plaintiff") filed a civil rights suit alleging employment discrimination under both federal and state law by his former employer, Defendant Mondelez Global, L.L.C. ("Defendant"). Plaintiff was employed as a truck driver for Defendant and was fired after he was involved in a vehicle accident while working. Plaintiff alleges claims under (1) Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et. seq.); (2) the Age Discrimination in Employment Act (29 U.S.C. §§ 621 et. seq.); and (3) the Pennsylvania Human Relations Act (43 P.S. § 955(a)). On May 28, 2020, Defendant filed a Motion to Dismiss for Lack of Prosecution (Doc. 28). This matter was referred to me for the purpose of issuing a report and recommendation as to Defendant's Motion. For the reasons below, I RECOMMEND that Defendant's Motion to Dismiss be GRANTED. II. FACTUAL BACKGROUND & PROCEDURAL HISTORY
According to the Complaint, Plaintiff immigrated to the United States from Zimbabwe in the 1980's. (Doc. 1, ¶ 10). On December 4, 2010, Plaintiff was hired as a warehouse worker for Defendant. Id. at ¶ 12. In 2012, Defendant assigned Plaintiff to a truck driver position. Id. at ¶ 13. At that time, Plaintiff was the only individual of African descent employed by Defendant. Id. at ¶ 22. As a truck driver, Plaintiff had an unblemished employment and driving record until July 22, 2016. Id. at ¶ 14.
On July 22, 2016, Plaintiff was driving a box truck for Defendant between 1:00 AM and 4:00 AM. Id. at ¶ 15. The conditions that night were dark and foggy. Id. Plaintiff drove under a railroad bridge that was too low for his truck to clear. Id. As a result, the top of the truck struck the bridge. Id. Plaintiff did not see warning signs regarding the clearance due to poor lighting and fog. Id. at ¶ 16.
After the accident, Plaintiff notified the insurance carrier and his manager, who gave him a ride home. Id. at ¶ 17. The police cited Plaintiff for a traffic violation and issued a report based on the accident. Id. at ¶ 18. Plaintiff was not speeding at the time of the accident, and results from alcohol and banned substance testing came back negative. Id. at ¶¶ 19-20.
Plaintiff was suspended from work the day the accident occurred. Id. at ¶ 21. On July 29, 2016, Plaintiff was terminated from employment with Defendant based on a violation of Federal Motor Carrier Safety Administration Standards and Defendant's personnel policy. Id. at ¶ 21. However, three of Plaintiff's coworkers, all of whom were younger, Caucasian truck drivers, had been involved in daytime accidents while driving for Defendant. Id. at ¶ 22. These three drivers were not terminated by Defendant following their accidents. Id.
On May 13, 2019, Plaintiff filed his Complaint (Doc. 1) initiating this suit. Plaintiff alleges that as a result of his termination, he suffered a loss of wages and benefits, foreclosure on his home due to his inability to pay the mortgage, and emotional distress. Id. at ¶ 24. In total, Plaintiff alleges a total wage loss of approximately $385,740 as a result of his termination. Id. at ¶ 29.
Prior to his termination, Plaintiff worked forty (40) hours per week at $26.50 per hour. (Doc. 1, ¶ 26). On April 8, 2019, Plaintiff was hired as a Manufacturing Operator I by Pfizer, Inc. where he works forty (40) hours per week at $15.50 per hour. Id. at ¶ 25. Plaintiff alleges that he lost the full extent of his wages for approximately 141 weeks, July 22, 2016 through April 8, 2019. Id. at ¶ 27. $26.50 per hour at forty (40) hours per week for 141 weeks yields a total amount of $149,460 in lost wages. Id. Plaintiff expects to retire on July 22, 2029 at the age of seventy-five. Id. at ¶ 28. The difference between Plaintiff's old wage and new wage is $11 per hour and April 8, 2019 through July 22, 2029 is approximately 537 weeks where he lost this difference. Id. Forty (40) hours per week at the difference of $11 per hour for 537 weeks amounts to $236,280. Id.
On December 2, 2019, Plaintiff's counsel filed a Motion for Leave to Withdraw as Counsel (Doc. 15) after being unable to reach Plaintiff for months. (Doc. 28, ¶ 3). On January 6, 2020, the Court granted counsel's Motion to Withdraw. Id. at ¶ 4. On February 11, 2020, the Court issued an Order (Doc. 23) designating Plaintiff as pro se and directed the parties to meet and confer on or before March 10, 2020, to jointly file a proposed case management plan. (Doc. 28, ¶ 5).
On May 29, 2020, Defendant filed a Motion to Dismiss for Failure to Prosecute (Doc. 28). Defendant filed a Brief in Support (Doc. 31) on June 2, 2020. On June 3, 2020, this case was referred to me for the sole purpose of issuing a report and recommendation regarding the Motion to Dismiss. (Doc. 30). On June 3, 2020, I issued an Order (Doc. 32) directing Plaintiff to file a brief in opposition to Defendant's Motion to Dismiss on or before July 2, 2020. At this time, Plaintiff has not filed a brief in opposition to Defendant's Motion to Dismiss. In my Order (Doc. 32) Plaintiff was warned: Plaintiff is also advised that failure to file a brief in opposition may result in Defendant's Motion being deemed unopposed, or the dismissal of this case. See L.R. 7.6; Fed. R. Civ. P. 41." III. LEGAL STANDARDS
A. MOTION TO DISMISS STANDARD
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss, the court "must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint." Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In reviewing a motion to dismiss, a court must "consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents." Id. at 230.
In deciding whether a complaint fails to state a claim upon which relief can be granted, the court is required to accept as true all factual allegations in the complaint as well as all reasonable inferences that can be drawn from the complaint. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). These allegations and inferences are to be construed in the light most favorable to the plaintiff. Id. However, the court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Further, it is not proper to "assume that [the plaintiff] can prove facts that [he] has not alleged. . . ." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following the rule announced in Ashcroft v. Iqbal, "a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a complaint must recite factual allegations enough to raise the plaintiff's claimed right to relief beyond the level of mere speculation. Id. To determine the sufficiency of a complaint under the pleading regime established by the Supreme Court, the court must engage in a three-step analysis:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Iqbal, . Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. [at 679]. Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id.Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
"In other words, a complaint must do more than allege the plaintiff's entitlement to relief" and instead must 'show' such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
As the Third Circuit has stated:
The Supreme Court in Twombly set forth the "plausibility" standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing "more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint which pleads facts "merely consistent with" a defendant's liability, [ ] "stops short of the line between possibility and plausibility of 'entitlement of relief.'" Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
In undertaking this task, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment."). However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan, 20 F.3d at 1261.
B. POULIS STANDARD
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to dismiss a civil action for failure to prosecute, stating that: "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." Fed. R. Civ. P. 41(b). Decisions regarding dismissal of actions for failure to prosecute rest in the sound discretion of the court and will not be disturbed absent an abuse of that discretion. Emerson v. Thiel College, 296 F. 3d 184, 190 (3d Cir. 2002) (citations omitted). That discretion, while broad, is governed by certain factors, commonly referred to as Poulis factors.
The Third Circuit has stated:
To determine whether the District Court abused its discretion [in dismissing a case for failure to prosecute], we evaluate its balancing of the following factors: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).Emerson, 296 F.3d at 190.
In exercising this discretion, "there is no 'magic formula' that we apply to determine whether a District Court has abused its discretion in dismissing for failure to prosecute." Lopez v. Cousins, 435 F. App'x 113, 116 (3d Cir. 2011) (quoting Briscoe v. Klaus, 538 F.3d 252 (3d Cir. 2008)). Therefore, "[i]n balancing the Poulis factors, [courts] do not employ a . . . 'mechanical calculation' to determine whether a District Court abused its discretion in dismissing a plaintiff's case." Briscoe, 538 F.3d at 263 (quoting Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)). Consistent with this view, it is well-settled that "no single Poulis factor is dispositive," and that "not all of the Poulis factors need be satisfied in order to dismiss a complaint." Briscoe, 538 F.3d at 263 (internal citations and quotations omitted). Moreover, recognizing the broad discretion conferred upon the district court in making judgments weighing these six factors, the Court of Appeals has frequently sustained such dismissal orders where there has been a pattern of dilatory conduct by a pro se litigant who is not amendable to any lesser sanction. See, e.g., Emerson, 296 F.3d 184; Tillio v. Mendelsohn, 256 F. App'x 509 (3d Cir. 2007); Reshard v. Lankenau Hospital, 256 F.App'x 506 (3d Cir. 2007); Azubuko v. Bell National Organization, 243 F.App'x 728 (3d Cir. 2007). IV. ANALYSIS
A. MERITS OF PLAINTIFF'S CLAIMS
Plaintiff alleges three claims of employment discrimination. Plaintiff's claims are brought under (1) Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et. seq.); (2) the Age Discrimination in Employment Act (29 U.S.C. §§ 621 et. seq.); and (3) the Pennsylvania Human Relations Act (43 P.S. § 955(a)).
Because Plaintiff asserts claims under both Title VII and the PHRA, I will address these claims together as the circumstances of this case do not require that we make differing analyses. See Burton v. Teleflex Inc., 707 F.3d 417, 432 (3d Cir. 2013) (treating plaintiff's PHRA claims as identical to her Title VII claims); see also Atkinson v. LaFayette Coll., 460 F.3d 447, 454 n.6 (3d Cir. 2006) ("Claims under the PHRA are interpreted coextensively with Title VII claims.").
1. Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act
I first address Plaintiff's claims under Title VII and the PHRA. Under Title VII, it is "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Disparate treatment discrimination, a form of discrimination prohibited under Title VII, is proven by either using direct evidence of an intention to discriminate or using indirect evidence from which a court can infer an intention to discriminate. Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008).
Direct evidence is "evidence that proves an ultimate fact in the case without any process of inference." Morgan v. York City School District, No. 07-1211, 2009 WL 5111792, at *3 n. 6 (M.D.Pa. Dec. 16, 2009) (quoting Woodson v. Scott Paper Co., 109 F.3d 913, 930 (3d Cir. 1997)). "An employer who discriminates 'will almost never announce a discriminatory animus or provide employees or courts with direct evidence of discriminatory intent.'" Id. (quoting Iadimarco v. Runyon, 190 F.3d 151, 157 (3d Cir. 1999)). Plaintiff does not state, and nothing in the Complaint suggests, that he relies on direct evidence in support of his employment discrimination claims. Therefore, the Court is required to use the McDonnell Douglas burden-shifting framework to analyze Plaintiff's Title VII and PHRA employment discrimination claims. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Under this burden-shifting framework:
[T]he employee must first establish a prima facie case. If the employee is able to present such a case, then the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for its adverse employment decision. If the employer is able to do so, the burden shifts back to the employee, who, to defeat a motion for summary judgment, must show that the employer's articulated reason was a pretext for intentional discrimination.C.A.R.S. Protection Plus, 527 F.3d at 364.
In order to show a prima facie case of discrimination under Title VII, Plaintiff must establish that: "1) s/he is a member of a protected class, 2) s/he was qualified for the position s/he sought to attain or retain, 3) s/he suffered an adverse employment action, and 4) the action occurred under circumstances that could give rise to an inference of intentional discrimination." Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008).
Here, Plaintiff sufficiently alleges a prima facie case of discrimination. Plaintiff alleges membership in a protected class because he is both African American and he immigrated to the United States from Zimbabwe. Plaintiff alleges that he was qualified for the truck driver position because he obtained a commercial driver's license and had been driving for Defendant for four (4) years with an "unblemished employment and driving record." (Doc. 1, ¶¶ 13-14). Further, Plaintiff alleges that he suffered an adverse employment action at the hands of Defendant when he was terminated from his position on July 29, 2016. Plaintiff's termination occurred under circumstances that could give rise to an inference of intentional discrimination because Plaintiff was the only individual of African descent employed by Defendant. Further, Plaintiff alleges that three other employees of Defendant, all of whom were younger, Caucasian truck drivers, had been involved in daytime accidents while driving for Defendant and were not terminated.
Plaintiff establishes a prima facie case of discrimination, so the burden shifts to Defendant "to provide a legitimate, nondiscriminatory reason for its adverse employment decision." C.A.R.S. Protection Plus, 527 F.3d at 364. In Defendant's Answer (Doc. 6), it argues that Plaintiff violated the "Federal Motor Carrier Safety Administration Standards and Defendant's Basic Driver Work Rules" which led to his termination. Id. at ¶ 21. These violations may be sufficient to establish a legitimate, nondiscriminatory reason for Plaintiff's termination. If Defendant can sufficiently provide a legitimate, nondiscriminatory reason for Plaintiff's termination, the burden shifts back to Plaintiff to "show that the employer's articulated reason was a pretext for intentional discrimination." C.A.R.S. Protection Plus, 527 F.3d at 364. The burden shifting analysis under McDonnell Douglas is better suited to be addressed on a motion for summary judgment. However, Plaintiff satisfies the pleading standard to survive a motion to dismiss by sufficiently stating a claim for discrimination under both Title VII and the PHRA. Plaintiff's claims under Title VII and the PHRA should not be dismissed on the merits.
2. The Age Discrimination in Employment Act
The same McDonnell Douglas analysis stated above is applied to Plaintiff's age discrimination claim under the ADEA. Under 29 U.S.C. §§ 621 et. seq., in order to establish a prima facie case of discrimination, Plaintiff must show that: (1) he or she is forty years old; (2) he or she was qualified for the position in question; (3) the defendant took an adverse employment action against him or her; and (4) he or she was replaced by another employee who was sufficiently younger so as to support an inference of discrimination. Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009).
Plaintiff successfully pleads the first three (3) elements to establish a prima facie case of age discrimination. However, Plaintiff fails to allege that he was replaced by another employee who was sufficiently younger. Plaintiff states that he is over forty years old as he was born on July 20, 1954 - making Plaintiff 66 years old. As discussed above, Plaintiff alleges that he was qualified for the truck driver position based on his commercial driver's license and his unblemished record, and Defendant took an adverse employment action against him by terminating his employment after the accident. Plaintiff fails, however, to allege that he was replaced by an employee who was sufficiently younger than him. By failing to meet this fourth prong, Plaintiff fails to establish a prima facie case of age discrimination. Therefore, Plaintiff's age discrimination claim should be dismissed on the merits.
B. POULIS ANALYSIS
In this case, a dispassionate assessment of the Poulis factors weighs in favor of dismissal.
Consideration of the first Poulis factor, the extent of Plaintiff's personal responsibility, shows that it is Plaintiff's responsibility to litigate this case. Delays in this case are entirely attributable to Plaintiff. Plaintiff has failed to abide by court orders and neglected to litigate this case. Throughout the litigation of this case, Plaintiff has consistently been unresponsive and missed briefing deadlines - notably failing to file a brief in opposition to Defendants' Motion to Dismiss. Thus, Plaintiff's failure to participate in this litigation makes further proceedings impossible. The first Poulis factor weighs in favor of dismissal.
The second Poulis factor, the prejudice to the adversary caused by Plaintiff's failure to file a brief in opposition weighs in favor of dismissal. Plaintiff has failed to respond to court orders directing him to participate in this litigation. According to Defendant's Motion to Dismiss (Doc. 28, p. 2), "To date, Plaintiff has ignored Defendant's efforts to reach him by telephone, email and mail and has failed to comply with the Court's February 11, 2020 Order. Plaintiff's failure to take any action whatsoever to prosecute his case over the last seven months has impeded Defendant's ability to complete discovery and further develop its trial strategy." I also note that the facts alleged in the complaint occurred almost four years ago. Plaintiff's failure to litigate his claims or comply with court orders now wholly frustrates and delays the resolution of this action. Without Plaintiff's participation in his civil suit, this case cannot move forward. Plaintiff's lack of participation in his case creates an unnecessary stalemate in this litigation. Accordingly, I find that the second Poulis factor weighs in favor of dismissal.
The third Poulis factor, the history of dilatoriness on Plaintiff's part, weighs in favor of dismissal. Plaintiff has failed to participate in this litigation since his former counsel in this case filed a Motion to Withdraw as Counsel for Plaintiff (Doc. 15). Notably, in support of his Motion, Plaintiff's former counsel stated that he had "repeatedly attempted to communicate with Plaintiff via e-mail, telephone, and U.S. mail" and that "Plaintiff is impossible to reach by telephone, because all calls are unanswered and are routed to a message that states the voice mail box is full, without the ability to leave a message." (Doc. 15, ¶¶ 3, 5). The Court issued an Order (Doc. 17) directing Plaintiff to file any objections to his counsel withdrawing on or before December 20, 2019. The Court advised Plaintiff that failure to file a timely objection would result in the Motion being deemed unopposed. Plaintiff did not file any objections to his former counsel's Motion to Withdraw. On February 11, 2020, the Court issued an Order (Doc. 23) designating Plaintiff as a pro se litigant in this case. There has been no correspondence from Plaintiff since the Court's February 11, 2020 Order. Defendant has allegedly attempted to contact Plaintiff on multiple occasions, but these attempts have been unsuccessful. (Doc. 31, pp. 5-6).
The fourth Poulis factor, whether Plaintiff's conduct was willful or in bad faith is also in favor of dismissal. In this setting, the Court must assess whether Plaintiff's failure to prosecute reflects mere inadvertence or willful conduct, in that it involved "strategic," "intentional or self-serving behavior," and not mere negligence. Adams v. Trs. of N.J. Brewery Emps. Pension Trust Fund, 29 F.3d 863, 875 (3d Cir. 1994). At this juncture, when a plaintiff fails to comply with instructions of the Court directing him to take specific actions in this case, the Court is compelled to conclude that the plaintiff's actions are not accidental or inadvertent but instead reflect an intentional disregard for this case and the Court's instructions. I cannot say whether the delays were "strategic," however it appears Plaintiff's behavior was "intentional and self-serving." Therefore, the fourth factor weighs in favor of dismissal.
The fifth Poulis factor, the effectiveness of lesser sanctions, weighs in favor of dismissal. Cases construing Poulis agree that in a situation such as this case, where we are confronted by a pro se litigant who will not comply with the rules or court orders, lesser sanctions may not be an effective alternative. See e.g., Briscoe, 538 F.3d at 262-63; Emerson, 296 F.3d at 191. Here, Plaintiff's status as a pro se litigant severely limits the ability of the Court to utilize other lesser sanctions to ensure that this litigation progresses in an orderly fashion. The Court has endeavored to use lesser sanctions by entering our prior orders and counseling Plaintiff on his obligations in the case, to no avail. As such, I find that a lesser sanction would be ineffective in this case.
Finally, under Poulis, the Court is cautioned to consider one other factor: the meritoriousness of Plaintiff's claims or defenses. Generally, in determining whether a plaintiff's claims are meritorious, we use the standard for a Rule 12(b)(6) motion to dismiss. Poulis, 747 F.2d at 869-70. "A claim, or defense, will be deemed meritorious when the allegations of the pleadings, if established at trial, would support recovery by plaintiff or would constitute a complete defense." Id. The final Poulis factor weighs against dismissal of his claims under Title VII and the PHRA, as Plaintiff sufficiently alleges a claim for discrimination. This factor weighs in favor of dismissal of Plaintiff's claim for age discrimination under the ADEA, because Plaintiff fails to sufficiently allege a claim for age discrimination.
The Poulis factors weigh in favor of granting Defendant's Motion to Dismiss. I advise Plaintiff that if he wants this litigation to continue, he should file an objection to my report and recommendation, explaining why he has not responded to either the Defendant or the Court. V. RECOMMENDATION
For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
(1) Defendant Mondelez Global L.L.C.'s Motion to Dismiss for Lack of Prosecution be GRANTED.Date: August 3, 2020
(2) The Clerk of Court be ORDERED TO CLOSE THE CASE.
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3 which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.Date: August 3, 2020
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge