Wheeler v. United Parcel Service Inc. et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Howard Wheeler
v. Case No. 25-cv-372-JL-AJ
United Parcel Service Inc., et al.
Report and Recommendation
Plaintiff Howard Wheeler, appearing pro se, brings this
action against his former employer, United Parcel Service, Inc.
(“UPS”), and Pamela Koutroulis, Keith Judge, and Teamsters Union
Local No. 633. Mr. Wheeler alleges that UPS unjustly terminated
his employment and breached the collective bargaining agreement.
He further alleges that his union representatives failed to
protect his rights.
Pending before the court are Defendants’ motion to dismiss1
(Doc. No. 21) and Mr. Wheeler’s motion to extend time to file an
amended complaint (Doc. No. 33). For the following reasons, the
district judge should dismiss Mr. Wheeler’s complaint without
prejudice.
Background
Defendants removed this action on September 25, 2025,
1 The motion to dismiss was filed by Defendants UPS and
Koutroulis. Defendants Judge and Teamsters Union Local No. 633
joined in the motion.
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asserting federal question jurisdiction, 28 U.S.C. § 1331. Doc.
No. 1 (Notice of Removal). On October 24, 2025, the court
granted Defendants’ motion for a more definite statement,
ordering Mr. Wheeler to file an amended complaint within 30
days. See Doc. Nos. 7 (Motion); 11 (Order). The court required
Mr. Wheeler to identify which causes of action he was alleging
against which defendants and organize his allegations in
separate numbered paragraphs. Doc. No. 11. The 30-day period
to file a more definite statement was an expansion of the 14-day
period suggested by Federal Rule of Civil Procedure 12(e), given
Mr. Wheeler’s pro se status. Id. at n.1.
Mr. Wheeler has filed addenda to his complaint. See Doc.
Nos. 9, 15, 16. On December 5, 2025, after consideration of the
addenda, the court issued an order stating that Mr. Wheeler had
not complied with its October 24 Order. See Oct. 25, 2025
Endorsed Order. The court directed Mr. Wheeler to file an
amended complaint in compliance with the October 24 Order by
January 5, 2026. Id. The court noted that “[f]ailure to comply
may result in a recommendation that [his] case be dismissed.”
Id.
On December 29, Mr. Wheeler moved to file exhibits in
support of his complaint and pending motions. See Doc. No. 20.
The court granted that motion but noted that it did not bring
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Mr. Wheeler into compliance with the court’s October 24 Order.
See Feb. 3, 2026 Endorsed Order. The court reiterated the
requirements of the October 24 Order. Id.
On January 8, 2026, Defendants moved to dismiss, arguing
that Mr. Wheeler did not comply with the October 24 Order by the
January 5 deadline. See Doc. No. 21 (Motion); 22 (Memorandum in
Support). Mr. Wheeler objected, contending that he needed his
employee file from UPS to file an amended complaint. See Doc.
No. 23. The parties also filed reply and surreply briefing.
See Doc. Nos. 27 (Reply); 28 (Surreply).
Mr. Wheeler moved for employee files from UPS and to extend
time to amend his complaint. See Doc. No. 26 (Motion for
Files); 25 (Motion to Extend). The court denied the motion for
employee files, explaining that Defendants are not obligated to
produce discovery before the Rule 26(f) conference which the
parties have not yet held. See Feb. 3, 2026 Endorsed Order.
The court granted Mr. Wheeler’s motion to extend, again
reiterating the requirements of the October 24 Order and noting
the failure may result in dismissal. See Feb. 3, 2026 Endorsed
Order. The court also noted that Defendants’ refusal to provide
Mr. Wheeler with his personnel file does not excuse his
compliance. Id. The court extended the deadline to February
24, 2026. Id.
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On February 18, 2026, Mr. Wheeler filed an “addendum to
pending motions for scheduling conference.” See Doc. No. 32.
The same day, the court issued an order clarifying that no
pretrial conference would be scheduled until after resolution of
the pending motion to dismiss and that the court had found good
cause to extend the deadline for issuing a scheduling order.
See Feb. 18, 2026 Endorsed Order. The court reiterated the
February 24 deadline to amend. Id.
On February 19, 2026, Mr. Wheeler moved to extend the
deadline to amend. See Doc. No. 33. Mr. Wheeler requested that
the deadline be extended to after the court holds a Rule 16(f)
conference and Mr. Wheeler receives his employee file. Id. Mr.
Wheeler explained the difficulties he faces due to his pro se
status and mental health conditions. Id. Defendants objected
to Mr. Wheeler’s motion, arguing no good cause exists for his
failure to comply with the court’s deadlines and asking the
court to grant their motion to dismiss. See Doc. No. 35.
Mr. Wheeler has not filed an amended complaint in
compliance with the court’s October 24 Order.
Discussion
Under Rule 41(b), “[i]f the plaintiff fails to prosecute or
to comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it.” Fed. R.
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Civ. P. 41(b). While pro se complaints and filings are
construed liberally, Foley v. Wells Fargo Bank, N.A., 772 F.3d
63, 75–76 (1st Cir. 2014), even pro se litigants are bound by
the Federal Rules of Civil Procedure, Thompson v. Citigroup
Mortgage Loan Trust 2019 D, No. 22-cv-350-SM-AJ, 2024 WL
2089030, at n.11 (D.N.H. May 9, 2024) (citing Eagle Eye Fishing
Corp. v. U.S. Dept. of Commerce, 20 F.3d 503, 506 (1st Cir.
1994)). For the reasons stated in the court’s October 24 Order,
Mr. Wheeler’s complaint does not comply with the requirements of
Rules 8(a)(2) or 10(b). The court ordered Mr. Wheeler to file
an amended complaint identifying which causes of action he was
alleging against which defendants, specifying the allegations
showing he is entitled to relief for each cause of action, and
organizing his pleading into separate numbered paragraphs. The
court also issued multiple warnings that failure to comply may
result in dismissal.
After several extensions and over 150 days, Mr. Wheeler has
not complied with the October 24 Order. For that reason, the
district judge should dismiss this action. The court, however,
recommends that the dismissal be without prejudice. See
Spaulding v. U.S. Dept. of Educ., No. 24-cv-12401-ADB, 2025 WL
480434, at *1 (D. Mass. Jan. 16, 2025) (dismissing action
without prejudice following the plaintiff’s noncompliance with
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order directing her to file an amended complaint).
Conclusion
The court recommends granting Defendants’ motion to dismiss
(Doc. No. 21) and dismissing this action without prejudice. If
the district judge adopts this Report and Recommendation, Mr.
Wheeler’s motion to extend time (Doc. No. 33) should be denied
as moot.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. Fed. R.
Civ. P. 72(b)(2). The fourteen-day period may be extended upon
motion. Failure to file any objection 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). Only those issues raised in written objections to this
Report and Recommendation “are subject to review in the district
court,” and any issues “not preserved by such objection are
precluded on appeal.” Id. (citations omitted).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
March 24, 2026
Cc: Howard Wheeler, pro se
Counsel of record
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