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McAdoo v. The Marta/Atu Local 732 Employees Retirement Plan

United States District Court, N.D. Georgia, Atlanta Division

April 26, 2017

PHILLIP MCADOO, Plaintiff,
v.
THE MARTA/ATU LOCAL 732 EMPLOYEES RETIREMENT PLAN and THE MARTA/ATU LOCAL 732 EMPLOYEES RETIREMENT PLAN ALLOWANCE COMMITTEE, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Magistrate Judge John K. Larkins III's Final Report and Recommendation [35] (“R&R”). The R&R recommends the Court dismiss this action without prejudice.

         I. BACKGROUND

         On January 25, 2017, the Magistrate Judge granted Plaintiff Phillip McAdoo's (“Plaintiff”) counsel's motion to withdraw from the case. ([31] (“January 25th Order”)). The Magistrate Judge informed Plaintiff that he had 21 days in which to advise the Court of the appointment of a new attorney or whether Plaintiff intends to proceed pro se. The January 25th Order required Plaintiff to provide the new attorney's contact information or Plaintiff's contact information if he intends to proceed pro se. (Id. at 2). The Magistrate Judge advised Plaintiff that failure to comply with these requirements will “constitute a default” on his part. (Id.). The Magistrate Judge directed the clerk and counsel to serve the order on Plaintiff.

         On February 2, 2017, Plaintiff filed his “Notice of Address” [32], in which he lists two addresses, a temporary address in Griffin, GA, and a permanent address in San Francisco. The Notice did not state whether Plaintiff intends to proceed pro se.

         On March 10, 2017, the Magistrate Judge issued his R&R. The Magistrate Judge noted that more than 21 days passed since he issued his January 25th Order, and that Plaintiff did not comply with the January 25th Order. Accordingly, the Magistrate Judge recommends the Court dismiss this action without prejudice.

         On March 10, 2017, Plaintiff filed his “Reply Notice of Deposition, ” in which he lists an address in San Francisco. On March 17, 2017, he filed another document listing an address in San Francisco, but also listing a “Best Contact @ temporary address” in Griffin, Georgia. Plaintiff also filed multiple “objections” to documents and to the Court's grant of Defendant MARTA's Motion to Dismiss. ([39], [41], [43]). He also filed a “Motion for Extension of Time to Answer Motion Not to Dismiss, ” [44] despite that the Court has ruled on MARTA's Motion to Dismiss.

         II. DISCUSSION

         A. Legal Standard

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). Where no party has objected to the report and recommendation, the Court conducts only a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). Though Plaintiff does not specifically object to the R&R, the Court, in its discretion, conducts its de novo review.

         B. Analysis

         Local Rule 83.1(E)(4) provides:

Whenever an attorney withdraws or dies or is removed or suspended or for any other reason ceases to act as attorney of record, the party whom the attorney was representing must within twenty-one (21) days or before any further proceedings are had in the action before the court notify the clerk of the appointment of another attorney or of the party's decision to appear pro se. The party must also provide the clerk with the current telephone number and address of the newly-appointed ...

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