Kelley et al v. Russell et al

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Karyn M. Kelley et al.
v. 	Civil No. 20-cv-162-PB
Charles A. Russell et al.
REPORT AND RECOMMENDATION
The complaint is signed by Ms. Kelley in her individual capacity
and as trustee of the Karyn M. Kelley Revocable Trust (the “Trust”).
(Doc. No. 1). From the pleadings, it appears that Ms. Kelley intends
to represent herself and the revocable trust pro se.
Local Rule 83.6(c) limits pro se representation of a trust to
the sole beneficiary of the trust. 	By order dated February 5, 2020,
and April 1, 2020, the court gave Ms. Kelley two opportunities to
establish that she is the sole beneficiary of the trust or to obtain
counsel to represent the trust. 	The deadline to respond to the April
1st order lapsed on April 22, 2020, and Ms. Kelley took no action in
response.
“A district court, as part of its inherent power to manage its
own docket, may dismiss a case for any of the reasons prescribed in
Federal Rule of Civil Procedure 41(b), including failure of the
plaintiff to comply with any order of the court.” Torres-Álamo v.
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Puerto Rico, 502 F.3d 20, 25 (1st Cir. 2007). The undersigned,
mindful of “the strong presumption in favor of deciding cases on the
merits,” García-Pérez v. Hosp. Metropolitano, 597 F.3d 6, 7 (1st Cir.
2010), considers the totality of the circumstances in determining
whether dismissal is appropriate. See Díaz-Santos v. Dep’t of Educ.,
108 F. App’x 638, 640 (1st Cir. 2004).
Ms. Kelley was informed by the court that noncompliance with its
order would result in a recommendation of dismissal of The Karyn M.
Kelley Revocable Trust from this case. (Doc. No. 6 at 3). Given this
noncompliance, and the prohibition on Ms. Kelley representing the
Trust pro se, the undersigned finds it appropriate to recommend that
the district judge dismiss the Trust’s claims without prejudice for
failure to prosecute.1 The undersigned also recommends that the
Plaintiff Trust’s Application to Proceed in District Court without
Prepaying Fees or Costs (Doc. No. 3) be denied as moot.
Any objections to this Report and Recommendation must be filed
within fourteen days of being served with this notice. See Fed. R.
Civ. P. 72(b)(2). The fourteen-day period may be extended upon
1. 	The undersigned does not recommend that the Trust’s claims be dismissed with
prejudice, as Ms. Kelley’s conduct does not rise to the level where such a sanction
would be justified. See Pomales v. Celulares Telefónica, Inc., 342 F.3d 44, 48 (1st
Cir. 2003)(noting the factors a court should consider when determining whether
dismissal with prejudice for failure to prosecute is appropriate).
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motion. Failure to file objections within the specified time waives
the right to appeal the district court’s order. See Santos-Santos v.
Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
SO ORDERED.
/s/ Daniel J. Lynch
Daniel J. Lynch
United States Magistrate Judge
Date: May 4, 2020
cc: 	Karyn M. Kelley, pro se
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