United States District Court, E.D. Michigan, Southern Division
F. Cox United States District Judge.
through counsel, Barry F. Keller, on April 20, 2016,
Plaintiff filed this action under 42 U.S.C. § 405(g),
challenging a final decision of the Commissioner of Social
Security. The matter was referred to Magistrate Judge
Patricia Morris for determination of all non-dispositive
motions pursuant to 28 U.S.C. § 636(b)(1) and Report and
Recommendation pursuant to § 636(b)(1)(B) and (C). The
matter is currently before the Court on Plaintiff's
objections to a Report and Recommendation issued by
Magistrate Judge Morris on September 20, 2016 (“the
R&R, Magistrate Judge Morris set forth the procedural
history of this case as follows:
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.
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
(R&R at 1-2) (emphasis added).
R&R, the magistrate judge analyzed whether, under
Fed.R.Civ.P. 41(b), this action should be dismissed for
failure to prosecute and/or failure to comply with the
Court's orders. (Id. at 2-4). In the Sixth
Circuit, the following four factors are considered in
determining whether a case should be dismissed for want of
prosecution: 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 sanctions were imposed or considered before dismissal
of the action. Saulsberry v. Holloway, 622 F.
App'x 542, 545 (6th Cir. 2015).
Judge Morris found that the first factor weighed in favor of
dismissal because “Plaintiff's failure to respond
to the second order to show cause suggests that he has
willfully or neglectfully disregarded the
Court's orders.” (R&R at 3) (emphasis added).
She found that the second factor did not weigh in favor of
dismissal. As to the third factor, she noted that Plaintiff
has “been ordered to show cause why this matter should
not be dismissed for failure to prosecute twice, and has on
both occasions been warned that failure to respond could
result in dismissal, ” and therefore, the third factor
weighed in favor of dismissal.” (Id. at 4).
“Finally, in light of Plaintiff's repeated failure
to abide by deadlines and the Court's orders, and his
total failure to respond to the Court's second order to
show cause by the August 12, 2016 deadline, ”
Magistrate Judge Morris was “not persuaded that a
sanction less than dismissal would be appropriate in this
matter.” (Id.). As a result, she recommended
that “the case be dismissed with prejudice for failure
to prosecute pursuant to Fed.R.Civ.P. 42(b) and EDMI L.R.
41.2” (R&R at 4-5).
to Fed.R.Civ.P. 72(b), a party objecting to the recommended
disposition of a matter by a Magistrate Judge must filed
objections to the R&R within fourteen (14) days after
being served with a copy of the R&R. “The district
judge to whom the case is assigned shall make a de
novo determination upon the record, or after additional
evidence, of any portion of the magistrate judge's
disposition to which specific written objection has been
September 21, 2016, the day after the R&R was issued,
Plaintiff's Counsel filed objections to the September 20,
2016 R&R. (D.E. No. 11). Plaintiff objects to the
magistrate judge's conclusion as to each of the factors
that she found to weigh in favor of dismissal.
objects to the magistrate judge's conclusion that the
failure to respond to the second show cause order was due a
willful or neglectful disregard of the Court's orders and
objects to her recommendation that the case be dismissed with
prejudice. In sum, Plaintiff's Counsel seeks to blame his
legal assistant for his failure to respond to the magistrate
judge's second show cause order. Counsel states that his
legal assistant, who he asserts is the “person in
charge of monitoring the Social Security Disability
Docket” is “the only person who received
Notifications from the Federal Court” regarding this
case, was off for a bereavement leave for some unspecified
period of time, and then took a leave of absence at some
unspecified time. But Plaintiff's Counsel should
be monitoring the cases he has filed and is required, under
the electronic filing system, to register such that he
personally receives notifications of filings in his cases.
Plaintiff's Counsel appears to have since rectified that
error and will now get notices in this case.
Court notes that Plaintiff's Counsel has offered no
explanation as to why the summons, issued on May 12, 2016, in
this matter has not been served. Yet Plaintiff's Counsel
asks this Court not to dismiss this action and requests
“thirty days to properly prosecute and proceed with
this case.” (Objs. at 5).
reviewed the docket in this action, the R&R, and
Plaintiff's Objections, the Court finds that Magistrate
Judge Morris's recommendation that this case be dismissed
with prejudice for failure to prosecute was reasonable and
warranted under the circumstances presented. This ...