Schultz v. Roberts Gordon et al

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Scott Howard Shultz,
Plaintiff,
v.
Roberts-Gordon LLC & Weather-Rite LLC,
Defendants.
Case No. 25-cv-2412 (JRT/SGE)
REPORT AND
RECOMMENDATION
Plaintiff Scott Howard Shultz filed the Complaint in this matter on June 10, 2025,
asserting various claims against Roberts-Gordon LLC and Weather-Rite LLC. (Dkt. 1.)
On August 7, 2025, Defendant Roberts-Gordon LLC filed a Motion to Dismiss for
Lack of Jurisdiction and Failure to State a Claim. (Dkt. 5.) On August 22, 2025, the
Honorable John R. Tunheim, United States District Judge for the District of Minnesota,
referred the Motion to Dismiss to this Court for report and recommendation. (Dkt. 10.) On
August 29, 2025, the Court issued a briefing order, requiring the Plaintiff “to file any
responsive memorandum, and accompanying affidavits and exhibits on or before
September 9, 2025.” (Dkt. 11) On September 11, 2025, three days after the deadline,
Plaintiff sought an extension to file his responsive memorandum (Dkt. 12), and this Court
granted the motion, giving the Plaintiff until October 3, 2025, to file a response. (Dkt. 13.)
No response was filed. On October 21, 2025, the Court issued a Report and
Recommendation to dismiss the claims against Roberts-Gordon LLC. (Dkt. 15.)
On October 21, this Court also issued an order directing Mr. Schultz to file an
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Amended Complaint that complies with the requirements of 28 U.S.C. § 1332 and serve
Defendant Weather-Rite LLC with a copy of that Amended Complaint within 14 days.
(Dkt. 14.) The Court warned that failure to comply with the Order would result in a
recommendation that this action be dismissed for failure to prosecute.
As of the date of this Order, Mr. Schultz has not made any filings as directed by this
Court’s earlier Order. The Court is cognizant of the fact that Mr. Schultz is pro se. And
although pro se pleadings and filings are to be viewed charitably, pro se litigants are not
excused from complying with the Local Rules and the Federal Rules of Civil Procedures.
E.g., Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984) (per curiam). Based on the
information on the docket, Mr. Schultz has failed to file an Amended Complaint or serve
Weather-Rite LLC with copies of the same as required by this Court’s Order and the
Federal Rules. Additionally, if Mr. Schultz was unable to satisfy his obligations under the
Order, he has not advised the Court in writing of any good cause for the failure.
Federal Rule of Civil Procedure 41(b) states:
If a plaintiff fails to prosecute or 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 for 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).
A federal court need not wait for a motion to dismiss by a defendant; a court has the
inherent power to dismiss a case sua sponte for failure to prosecute. See Chambers v.
Nasco, Inc., 501 U.S. 32, 49 (1991); see also Sterling v. United States, 985 F.2d 411, 412
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(8th Cir. 1993) (citations omitted) (“District courts have inherent power to dismiss sua
sponte a case for failure to prosecute, and we review the exercise of this power for abuse
of discretion.”). Further, if a defendant “is not served within 90 days after the complaint is
filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant” unless the plaintiff shows good cause for
extending the time for service. Fed. R. Civ. P. 4(m).
More than ninety days have passed since Mr. Schultz filed his Complaint. (Dkt. 1.)
Because Mr. Schultz has not satisfied his obligations under this Court’s October 21, 2025
Order or the Federal Rules, and he has not shown good cause for the failure, this Court will
recommend that his case be dismissed.
The law requires that Mr. Schultz participate in his lawsuit. He has not done so even
though he has been notified that if he did not, his case might be dismissed. This Court is
recommending dismissal “without prejudice,” which means that Mr. Schultz is not
prohibited from re-filing his case if the law allows it. See Henderson v. Renaissance Grand
Hotel, 267 F. App'x 496, 497 (8th Cir. 2008) (per curiam) (“A district court has discretion
to dismiss an action under Rule 41(b) for a plaintiff’s failure to prosecute, or to comply
with the Federal Rules of Civil Procedure or any court order.”).
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Based on the above, and all the files, records, and proceedings herein, IT IS
HEREBY RECOMMENDED that this action be DISMISSED WITHOUT
PREJUDICE under Federal Rule of Civil Procedure 41(b) for failure to prosecute.
Date: November 5, 2025 	s/ Shannon G. Elkins
SHANNON G. ELKINS
United States Magistrate Judge
Filing Objections
This Report and Recommendation is not an order or judgment of the District Court and is
therefore not appealable directly to the Eighth Circuit Court of Appeals. Under Local Rule
72.2(b)(1), “a party may file and serve specific written objections to a magistrate judge’s
proposed findings and recommendations within 14 days after being served with a copy” of
the Report and Recommendation.
A party may respond to those objections within 14 days after being served a copy of the
objections. See Local Rule 72.2(b)(2). All objections and responses must comply with the
word or line limits set forth in Local Rule 72.2(c).
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