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Report & Recommendation — Kyle William Brenizer Trust v. United States of America et al., No. 20-cv-2158 (JRT/TNL) (Dkt. 11, D. Minn.)

Summary

U.S. Magistrate Judge Tony N. Leung of the District of Minnesota recommends that Kyle William Brenizer Trust v. United States of America et al., No. 20-cv-2158 (JRT/TNL), be dismissed without prejudice under Fed. R. Civ. P. 41(b) for failure to prosecute. The suit names the United States, the U.S. Attorney's Office for the District of Minnesota, U.S. Attorney Erica H. MacDonald, two Assistant U.S. Attorneys and Seven Unknown Agents of the FBI. The report says Brenizer was directed on February 22, 2021 to pay an initial partial filing fee, received an extension to May 13, 2021, and was warned twice that nonpayment would lead to dismissal; the deadline passed without payment or correspondence. It also recommends that the motion to proceed in forma pauperis (ECF No. 6) be denied as moot. The report is dated June 24, 2021, and objections may be filed within 14 days after being served a copy.

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       CASE 0:20-cv-02158-JRT-TNL          Doc. 11    Filed 06/25/21    Page 1 of 3




                        UNITED STATES DISTRICT COURT
                           DISTRICT OF MINNESOTA

  Kyle William Brenizer Trust, d/b/a/ Kyle           Case No. 20-cv-2158 (JRT/TNL)
  William Brenizer,

                       Plaintiff,

  v.
                                                            REPORT &
  United States of America; United States                RECOMMENDATION
  Attorney’s Office (District of Minnesota);
  Erica H. MacDonald in her individual and
  official capacity as United States
  Attorney; Matthew S. Ebert in his
  individual and official capacity as
  Assistant United States Attorney; Allison
  Ethen in her individual and official
  capacity as Assistant United States
  Attorney; and Seven Unknown Agents of
  the Federal Bureau of Investigation,

                       Defendants.


       On February 22, 2021, this Court directed Plaintiff Kyle William Brenizer to pay an

initial partial filing fee. See generally ECF No. 7. Brenizer was warned that if he did not

pay the initial partial filing fee, this action would be deemed abandoned and it would be

recommended that this case be dismissed without prejudice for lack of prosecution. ECF

No. 7 at 6; see Fed. R. Civ. P. 41(b). Brenizer sought and received an extension of time

until May 13, 2021, to pay the initial partial fee. See generally ECF Nos. 8, 9. Brenizer

was again warned that if he did not pay the initial partial fee, this action would be deemed

abandoned and it would be recommended that this case be dismissed without prejudice for

lack of prosecution. ECF No. 9 at 2; see Fed. R. Civ. P. 41(b).

                                             1
       CASE 0:20-cv-02158-JRT-TNL           Doc. 11    Filed 06/25/21     Page 2 of 3




       That May 13, 2021 deadline has passed without any further correspondence or

payment from Brenizer. Accordingly, this Court now recommends, consistent with its

prior orders, that this action be dismissed without prejudice under Rule 41(b) for failure to

prosecute. 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.”).




                                 [Continued on next page.]




                                              2
         CASE 0:20-cv-02158-JRT-TNL                   Doc. 11       Filed 06/25/21         Page 3 of 3




                                         RECOMMENDATION

        Based upon the foregoing, and on all of the files, records, and proceedings herein,

IT IS HEREBY RECOMMENDED that:

        1. This action be DISMISSED WITHOUT PREJUDICE under Fed. R.

             Civ. P. 41(b) for failure to prosecute.

        2. Brenizer’s Motion and Affidavit for Permission to Proceed In Forma Pauperis

             (ECF No. 6) be DENIED AS MOOT.



Date: June         24 1 , 2021                                                s/ Tony N. Leung
                                                                       Tony N. Leung
                                                                       United States Magistrate Judge
                                                                       District of Minnesota


                                                                       Kyle William Brenizer Trust v.
                                                                       United States et al.
                                                                       Case No. 20-cv-2158 (JRT/TNL)



                                                   NOTICE

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 finding and recommendations within 14 days after being
served 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).

1
  The Report and Recommendation previously issued, on June 24, 2021, contained an erroneous signature date of
June 26, 2021. ECF No. 10 at 3. The Clerk of Court has been directed to mark that filing as being done in error and
the Court has reissued its Report and Recommendation with the correct date.

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