United States District Court, E.D. Michigan, Southern Division
Harper, Plaintiff, represented by Barry F. Keller, Keller &
MAGISTRATE JUDGE'S REPORT AND
PATRICIA T. MORRIS, Magistrate Judge.
Willie Harper brings this action pursuant to 42 U.S.C. Â§
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.
Introduction and Procedural History
to 28 U.S.C. Â§ 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).
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).
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.
Analysis and Conclusions
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)).
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
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 ...