United States District Court, N.D. Georgia, Atlanta Division
September 9, 2014
FUNCTIONAL PRODUCTS TRADING, S.A., Plaintiff and Counterclaim Defendant,
JITC, LLC and ROBERT JANITZEK, Defendants, Counterclaim Plaintiffs and Third-Party Plaintiffs,
I-GRAIN, LLC and LORIN A. TARR, Third-Party Defendants.
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
On February 2, 2012, Plaintiff Functional Products ("Plaintiff') filed a complaint  seeking damages, replevin and specific performance against I-Grain, LLC ("I-Grain") and Lorin Tarr ("Tarr") for breach of an agricultural sales contract.
On February 24, 2012, Plaintiff filed its first amended complaint  to add JITC, LLC ("JITC") and Robert Janitzek ("Janitzek") (collectively, "Defendants") as defendants. On July 31, 2012, I-Grain and Tan settled with Plaintiff and were dismissed  from the action.
On September 7, 2012, Plaintiff filed its Second Amended Complaint  (the "Complaint") against Defendants. On September 21, 2012, Defendants filed their Answer, Counterclaim, Impleader, and Crossclaim  (the "Answer"). Defendants included in their Answer counterclaims against Plaintiff, and a third party complaint and crossclaims against I-Grain and Tarr (collectively, "Third Party Defendants").
On August 20, 2013, the Court ordered  the Clerk to strike Defendants' Answer, dismiss Defendants' counterclaims, and enter default against Defendants. On July 29, 2014, the Court ordered  that Plaintiffs motion for default judgment  against Defendant's be granted with respect to Counts I, HMI, IV, VI, VII, X, XI, and XIII of the Complaint. Defendants' first party complaint and crossclaims against Third Party Defendants remain pending.
To date, Defendants have failed to initiate any substantial proceedings against Third Party Defendants on Defendants' first party complaint or crossclaims. On July 29, 2014, the Court issued an order (the "Show Cause Order") to show cause, in writing on or before August 19, 2014,  why the Court should not dismiss Defendants' first party complaint and crossclaims against Third Party Defendants for want of prosecution. Defendants did not respond to the Show Cause Order.
The Court may dismiss a civil action for want of prosecution if the case has been pending for more than six (6) months without any substantial proceedings of record having been taken in the case. LR 41.3(A)(3), NDGa. The Court may also dismiss a civil action for failure or refusal to obey a lawful order of the Court. LR 41.3(A)(2), NDGa.
Defendants have failed to initiate any substantial proceedings against Third Party Defendants on Defendants' first party complaint or crossclaims since Defendants filed their claims on September 21, 2012. Defendants have also failed to respond to the Court's Show Cause Order. The Court concludes that Defendants' claims should be dismissed without prejudice.
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Defendants' first party complaint and crossclaims  against Third Party Defendants are DISMISSED WITHOUT PREJUDICE for failure to prosecute and failure to obey a lawful order of the Court.