United States District Court, E.D. Michigan, Southern Division
Honorable Matthew F. Leitman
REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF'S
COMPLAINT  PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE
R. GRAND United States Magistrate Judge
October 16, 2015, pro se Plaintiff Leshaun Curry
filed a complaint in the Third Judicial Circuit Court in
Detroit, Michigan against Defendants Experian Information
Solutions, Inc. (“Experian”) and Key Bank
(Doc. #1). Curry alleged violation of the Fair Debt
Collections Practices Act (15 U.S.C. § 1692 et
seq.), the Fair Credit Reporting Act (15 U.S.C. §
1681 et seq.), and the Michigan Consumers Protection
Act (MCL § 445.901). (Id.). On November 13,
2015, Experian filed a Notice of Removal to this Court and an
answer to Curry's complaint. (Docs. #1, 3). On January
19, 2016, this case was referred to the undersigned for all
pretrial purposes by District Judge Matthew F. Leitman. (Doc.
19, 2016, Experian filed a Motion to Compel Discovery and,
Upon Failure to Make Discovery, to Dismiss with Prejudice.
(Doc. #18). In this motion, Experian requested that the Court
order Curry to serve his Federal Rule of Civil Procedure
26(a) disclosures and answer Experian's Interrogatories
and Requests for Production of Documents within fourteen
days. (Id. at 6). Experian further requested that
the Court dismiss Curry's complaint with prejudice if he
failed to comply with this Order, as provided in Rule
37(b)(2)(A)(v). (Id.). Curry did not file a response
to this motion to compel discovery.
Court granted Experian's motion on August 17, 2016. (Doc.
#19). In doing so, the Court ordered Curry to provide the
requested information by August 31, 2016. (Id. at
2). Moreover, the Court advised Curry that he “is
expressly warned that his failure to comply with this Order
will result in a recommendation that his action be
dismissed.” (Id.) (emphasis in original).
It appears that Curry did not comply with this Order.
the action was referred back to the undersigned for
additional pre-trial matters (Doc. #21), the Court issued a
Notice of Telephonic Conference to the parties on October 11,
2016, directing them to participate in a telephonic status
conference with the Court on October 19, 2016 at 10:00 a.m.
(Doc. #22). Curry, however, failed to participate in this
telephonic status conference. Moreover, Curry failed to
provide his telephone number to the Court (as he was required
to do per the Notice) (id.), and his telephone
number does not appear on the docket.
October 24, 2016, the Court issued Curry an Order to Show
Cause as to why this case should not be dismissed pursuant to
Rule 41(b). (Doc. #23). The Court gave Curry until November
7, 2016 to (1) explain why this case should not be dismissed
for his failure to participate in the October 19, 2016
telephonic status conference; and (2) indicate whether (and
why) he believes he complied with the Court's August 17,
2016 Order granting Experian's motion to compel
discovery. (Id. at 3). The Court also expressly
warned Curry “that if he fails to comply with this
Order [to Show Cause], the Court will promptly issue a Report
and Recommendation to dismiss his case pursuant to Federal
Rule of Civil Procedure 41(b).” (Id.)
(emphasis in original). Curry did not file any response to
the Order to Show Cause.
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.
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. App'x 294, 296 (6th Cir.
2001). As the Link court explained, “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.” 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 ...