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Curry v. Experian Information Solutions, Inc.

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

November 9, 2016

LESHAUN CURRY, Plaintiff,
v.
EXPERIAN INFORMATION SOLUTIONS, INC., Defendant.

          Honorable Matthew F. Leitman

          REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF'S COMPLAINT [1] PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 41(b)

          DAVID R. GRAND United States Magistrate Judge

         I. BACKGROUND

         On 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 N.A.[1] (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. #11).

         On July 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.

         The 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.

         After 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.[2]

         On 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.

         II. ANALYSIS

         Federal 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.

         It is 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)).

         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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