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ORDER REGARDING DEFENDANT’S

MOTION TO DISMISS

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

_______________________________________)

STERLING BADGER, )

) No. C06-695RSL

Plaintiff, ) 

v. ) ORDER REGARDING

) DEFENDANT’S MOTION 

ATHERTON CONSTRUCTION, INC., ) TO DISMISS

)

Defendant. )

_______________________________________)

This matter comes before the Court on “Defendant’s Motion to Dismiss Pursuant to

FRCP 37, FRCP 41 and Local Civil Rule 41(b)(2)” (Dkt. #19). On March 27, 2007, by

stipulation, the Court granted plaintiff’s counsel leave to withdraw and ordered that all further

pleadings, correspondence, discovery and other materials be directed to plaintiff at his Spokane

Valley address until he obtained replacement counsel. See Dkt. #17 (Order on Joint Stipulation

regarding Attorney Kimbrough Withdrawal). Since March 27, 2007, however, defendant has

been unable to contact plaintiff at his Spokane Valley address. As a result, defendant now

moves to dismiss this case under Fed. R. Civ. P. 37 because plaintiff failed to appear for his

deposition, or for dismissal under Fed. R. Civ. P. 41 for failure to prosecute. See Dkt. #19 at 2. 

Alternatively, defendant moves for an order directing the Court to send notice to plaintiff that

the Court will dismiss this action within sixty days unless plaintiff enters an appearance pro se

and advises the Court of his current address. See id. 

Case 2:06-cv-00695-RSL Document 21 Filed 11/06/07 Page 1 of 2
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1

 Local Civil Rule 41(b)(2) provides, in part: “A party proceeding pro se shall keep the court

and opposing parties advised as to his current address. . . . [I]f such plaintiff fails to notify the court and

opposing parties within sixty days thereafter of his current address, the court may dismiss the action

without prejudice for failure to prosecute.” 

ORDER REGARDING DEFENDANT’S

MOTION TO DISMISS -2-

The Court declines to exercise its discretion to dismiss this matter under Fed. R. Civ. P.

37 because there is no showing that plaintiff actually received the deposition notice. Dismissal

under Local Civil Rule 41(b)(1) is also not appropriate at this time because the case has not

“been pending in this court for more than one year without any proceeding of record having

been taken.” Id. (emphasis added). Furthermore, Local Civil Rule 41(b)(1) requires that the

Court give plaintiff an opportunity to show cause before dismissing the case.

However, given that plaintiff has failed to appoint counsel or advise the Court of his

current address since the Court granted his counsel’s leave to withdraw on March 27, 2007, the

Court grants defendant’s requested relief to note a dismissal proceeding under Local Civil Rule

41.1

 See Dkt. #17. The Clerk of Court is directed to note a “Rule 41 dismissal proceeding” on

the Court’s calendar for January 11, 2008. If plaintiff fails to notify the Court and defendant of

plaintiff’s current address by January 11, 2008, the Court will dismiss the action for failure to

prosecute under Local Civil Rule 41(b)(2). The Clerk of Court is directed to send a copy of this

order to plaintiff’s last known address:

Sterling Lynn Badger

c/o Terri Woodward

8223 E. Carlisle Ave.

Spokane Valley, WA 99212

DATED this 6th day of November, 2007.

A

Robert S. Lasnik

United States District Judge

Case 2:06-cv-00695-RSL Document 21 Filed 11/06/07 Page 2 of 2