United States District Court, E.D. Michigan, Southern Division
GARY M. COPENY, Plaintiff,
MEIJER GREAT LAKES LIMITED PARTNERSHIP, LLC, Defendant.
M. Copeny, Plaintiff, Pro Se.
Great Lakes, Limited, Defendant, represented by Cathrine F.
REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF'S
COMPLAINT  PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE
R. GRAND, Magistrate Judge.
March 30, 2016, pro se Plaintiff Gary M. Copeny
filed a complaint in the Fifteenth Judicial District Court in
Ann Arbor, Michigan, against Defendant Meijer Great Lakes
Limited Partnership, LLC ("Meijer"), alleging
unlawful employment discrimination in violation of the
Veterans Employment Opportunities Act. (Doc. #1). On May 4,
2016, Meijer filed a Notice of Removal, removing the case to
this Court. ( Id. ). Also on May 4, 2016, Meijer
filed an answer to Copeny's complaint. (Doc. #4). On May
6, 2016, this case was referred to the undersigned for all
pretrial purposes by District Judge Matthew F. Leitman. (Doc.
#7). This Court has retained jurisdiction over this case at
all times since its removal to this Court in May 2016.
24, 2016, Meijer filed a Motion to Compel Plaintiff to
Respond to Defendant's First Request for Production of
Documents and to Appear for a Deposition. (Docs. #9, 10). In
this motion, Meijer asserts that Copeny failed to respond to
its first request for production of documents and to appear
for a scheduled deposition. Meijer states that it tried
contacting Copeny by phone to avoid having to file its
motion, but Copeny did not answer the phone or respond to a
June 17 voicemail.
has failed to participate in this litigation more than once.
The Court issued a Notice of Telephonic Conference to the
parties on June 21, 2016, directing them to participate in a
telephonic scheduling conference with the Court on June 28,
2016 at 10:00 a.m. (Doc. #8). Copeny, however, failed to
participate in this telephonic scheduling conference. At the
scheduled time on June 28, the Court called Copeny's
phone number, but a recording said it was unable to receive
phone calls. As a result, on June 29, 2016, the Court issued
an Order to Show Cause, ordering Copeny to show cause as to
why this case should not be dismissed for his failure to
participate in the June 28 telephonic scheduling conference.
(Doc. #11). The Court ordered Copeny to show cause in two
ways: by providing a working telephone number, in writing, on
or before July 14, 2016; and by participating in a telephonic
scheduling conference on July 21, 2016 at 3:30 p.m. (
Id. at 2). The Court expressly warned Copeny that,
"if he fails to comply with the Court's order by
failing to provide a number where he can be reached and/or by
failing to participate in the July 21, 2016 telephonic
scheduling conference, the Court will recommend dismissing
the case pursuant to Fed.R.Civ.P. 41(b)." ( Id.
). To that end, on June 29, 2016, the Court also issued a
separate Notice of Telephonic Conference to the parties,
directing them to participate in this second telephonic
scheduling conference with the Court. (Doc. #12).
Copeny did not comply with the Order to Show Cause; he did
not provide a new telephone number where he could actually be
reached, and when the Court, at the scheduled time on July
21, called Copeny at the number he had previously provided, a
recording said it was unable to receive phone
Rule of Civil Procedure 41 governs dismissals of actions. As
to involuntary dismissals, Rule 41(b) provides:
If 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. Unless the dismissal order
states otherwise, a dismissal under this subdivision (b) and
any dismissal not under this rule - except one for lack of
jurisdiction, improper venue, or failure to join a party
under Rule 19 - operates as an adjudication on the merits.
Civ. P. 41(b). It is clear that, despite the somewhat
permissive language of Rule 41(b), which contemplates a
motion by a defendant, a federal court may sua
sponte dismiss a claim for failure to prosecute or
comply with an order. See Link v. Wabash R.R.
Co., 370 U.S. 626, 630-32 (1962); Steward v. City of
Jackson, 8 F.Appx. 294, 296 (6th Cir. 2001). As the
Link court explained, "Neither the permissive
language of [Rule 41(b)] B which merely authorizes a motion
by the defendant B nor its policy requires us to conclude
that it was the purpose of the Rule to abrogate the power of
courts, acting on their own initiative, to clear their
calendars of cases that have remained dormant because of the
inaction or dilatoriness of the parties seeking relief."
Id. at 630. "The power to invoke this sanction
is necessary in order to prevent undue delays in the
disposition of pending cases and to avoid congestion in the
calendars of the District Courts." Id. at
629-30. In other words, "a district court can dismiss an
action for noncompliance with a local rule... if the behavior
of the noncomplying party rises to the level of a failure to
prosecute under Rule 41(b) of the Federal Rules of Civil
Procedure." Tetro v. Elliott Popham Pontiac,
Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988,
992 (6th Cir. 1999) (citing Carver v. Bunch, 946
F.2d 451, 453 (6th Cir.1991)).
Sixth Circuit considers four factors in reviewing the
decision of a district court to dismiss a case for failure to
(1) whether the party's failure is due to willfulness,
bad faith, or fault; (2) whether the adversary was prejudiced
by the dismissed party's conduct; (3) whether the
dismissed party was warned that failure to cooperate could
lead to dismissal; and (4) whether less drastic ...