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Theus v. Internal Revenue Service Criminal Investigation Division

United States District Court, E.D. Michigan, Southern Division

August 2, 2016

RHONDA DENISE THEUS, Plaintiff, Third-Party Plaintiff,
v.
INTERNAL REVENUE SERVICE CRIMINAL INVESTIGATION DIVISION. Defendant, Third-Party Plaintiff, GREEN PLANET SERVICING, LLC, Third-Party-Defendant.

          Rhonda Denise Theus, Plaintiff, Pro Se.

          Green Planet Servicing, LLC, ThirdParty Defendant, represented by David G. Marowske, Potestivo Assoc..

          REPORT AND RECOMMENDATION RULE 41(b) DISMISSAL AND MOTION TO DISMISS (Dkt. 4)

          STEPHANIE DAWKINS DAVIS, Magistrate Judge.

         I. PROCEDURAL HISTORY

         Plaintiff, acting pro se, filed this lawsuit on December 9, 2015. (Dkt. 1). On January 4, 2016, third-party defendant Green Planet Servicing, LLC filed a motion to dismiss. (Dkt. 4). On January 5, 2016, District Judge David M. Lawson referred all pretrial matters to the undersigned, including the motion to dismiss. (Dkt. 5). On January 12, 2016, plaintiff moved for an emergency stay of the complaint, which the undersigned recommended be denied. (Dkt. 6, 7). On February 2, 2016, Judge Lawson adopted this Court's report and recommendation denying plaintiff's motion to stay the complaint. (Dkt. 8). On March 25, 2016, the undersigned ordered plaintiff to file a response to defendant Green Planet's motion to dismiss by April 18, 2016. (Dkt. 9). The order noted in bold print that failure to file a response may result in sanctions, including granting all or part of the relief requested by the moving party. Id. Plaintiff failed to file a timely response to the motion to dismiss.

         Subsequently, the Court issued an order requiring plaintiff to show cause in writing, by May 31, 2016, why this matter should not be dismissed for failure to prosecute. (Dkt. 10); see cf., Watsy v. Richards, 1987 WL 37151 (6th Cir. 1987) (A Rule 41(b) dismissal is an appropriate sanction for a pro se litigant's failure to provide the court with information regarding his current address.). Plaintiff was again warned, in bold print, that failure to timely or adequately respond in writing to the order to show cause or timely file a response to the motion would result in a recommendation that the motion be granted or that the entire matter be dismissed under Rule 41(b). (Dkt. 10). As of the date of this report and recommendation, plaintiff has failed to respond to the show cause order, file a response to the pending motion, or otherwise contact the Court.

         For the reasons set forth below, the undersigned RECOMMENDS that plaintiff's complaint against defendants be DISMISSED with prejudice under Federal Rule of Civil Procedure 41(b) and that the pending motion to dismiss (Dkt. 4) be TERMINATED as MOOT.

         II. ANALYSIS AND CONCLUSION

         Under Federal Rules of Civil Procedure 41(b), a federal court may sua sponte dismiss a claim for failure to prosecute or comply with an order. Link v. Wabash R.R. Co., 370 U.S. 626, 630-32 (1962); Steward v. City of Jackson, 8 Fed.Appx. 294, 296 (6th Cir. 2001). Indeed, the "authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted." Link, 370 U.S. at 629. "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." Link, 370 U.S. at 629-630. "[D]istrict courts possess broad discretion to sanction parties for failing to comply with procedural requirements." Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988, 991 (6th Cir. 1999) (citing Carver v. Bunch, 946 F.2d 451, 453 (6th Cir. 1991)). Further, "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, 173 F.3d at 992.

         Federal Rule of Civil Procedure 41 governs dismissals. As to involuntary dismissals, it 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.

         Fed.R.Civ.P. 41(b). "Neither the permissive language of [Rule 41(b)] - which merely authorizes a motion by the defendant - 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." Link v. Wabash R. Co., 370 U.S. 626, 630 (1962). "The authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted." Link, 370 U.S. at 629; see also Carter v. City of Memphis, Tenn., 636 F.2d 159, 161 (6th Cir. 1980) ("It is clear that the district court does have the power under [Fed.R.Civ.P. 41(b)] to enter a sua sponte order of dismissal.") (citing Link ). Moreover, "district courts possess broad discretion to sanction parties for failing to comply with procedural requirements." Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988, 991 (6th Cir. 1999) (citing Carver v. Bunch, 946 F.2d 451, 453 (6th Cir. 1991)). And, "a district court can dismiss an action for noncompliance with a local rule only 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, 173 F.3d at 992.

         The Sixth Circuit considers four factors in reviewing the decision of a district court to dismiss a case for failure to prosecute:

(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 ...

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