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Harper v. Commissioner of Social Security

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

September 20, 2016

WILLIE HARPER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Willie Harper, Plaintiff, represented by Barry F. Keller, Keller & Avadenka.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          PATRICIA T. MORRIS, Magistrate Judge.

         I. RECOMMENDATION

         Plaintiff Willie Harper brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"). Harper, represented by attorney Barry F. Keller, has failed to comply with the Court's orders, and has given no response to the Court's order to show cause why this case should not be dismissed. Accordingly, the Court RECOMMENDS that Harper's complaint (Doc. 1) be DISMISSED WITH PREJUDICE for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) and Local Rule 41.2.

         II. REPORT

         A. Introduction and Procedural History

         Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of Reference, this case was referred to the undersigned magistrate judge for the purpose of reviewing a final decision by the Commissioner denying Harper's claim for disability benefits. (Doc. 3; Tr. 1-3).

         Harper's complaint was filed on April 20, 2016. (Doc. 1). The following day, a court clerk filed notice that Harper had not paid his filing fee; correction of this error was to occur by April 28, 2016, on penalty of dismissal. (Doc. 2). On May 3, 2016, the Court ordered Harper to show cause why his complaint should not be dismissed for failure to prosecute, i.e. to pay the filing fee. (Doc. 4). On May 11, 2016, Harper filed a motion to proceed in forma pauperis (Doc. 5), which was granted on May 12, 2016 (Doc. 7). Also on May 16, 2016, the Court issued a summons for Defendant. (Doc. 8).

         Three months later, on August 12, 2016, the Court took notice that the summons remained unserved, and issued an order directing Plaintiff to show cause why his case should not be dismissed for failure to prosecute, pursuant to Local Rule 41.2. (Doc. 9). Plaintiff was notified that "[f]ailure to respond may result in dismissal of the case, " and was ordered to respond by August 26, 2016. ( Id. ). That deadline expired nearly two weeks ago, yet Plaintiff has failed to respond to the order to show cause, or to make his presence known on the docket in any way.

         B. Analysis and Conclusions

         Federal Rule of Civil Procedure 41(b) grants federal courts the authority to dismiss a case for "failure of the plaintiff to prosecute or to comply with these rules or any order of the court...." Fed R. Civ. P. 41(b). "This measure is available to the district court as a tool to effect management of its docket and avoidance of unnecessary burdens on the tax-supported courts [and] opposing parties.'" Knoll v. American Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999) (quoting Matter of Sanction of Baker, 744 F.2d 1438, 1441 (10th Cir. 1984)). "Not only may a district court dismiss for want of prosecution upon motion of a defendant, but it may also sua sponte dismiss an action whenever necessary to achieve the orderly and expeditious disposition of cases.'" Anthony v. Marion Co. Gen. Hosp., 617 F.2d 1164, 1167 (5th Cir. 1980) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 631 (1962)).

         Local Rule 41.2 mirrors the federal rule, providing that "the parties have taken no action for a reasonable time, the court may, on its own motion after reasonable notice or on application of a party, enter an order dismissing or remanding the case unless good cause is shown." EDMI L.R. 41.2.

         The Sixth Circuit is guided by four factors in determining whether a case should be dismissed for want of prosecution pursuant to Rule 41(b):

(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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