United States District Court, E.D. Michigan, Southern Division
George Caram Steeh, J.
REPORT AND RECOMMENDATION TO GRANT DEFENDANT'S
REQUESTS IN THEIR MOTION TO COMPEL FOR DISMISSAL FOR FAILURE
TO PROSECUTE, AND FOR COSTS AND FEES [ECF NO. 10]
ELIZABETH A. STAFFORD, United States Magistrate Judge
April 2017, Plaintiff Michelle Nelson filed a complaint in
Wayne County Circuit Court, which Defendant Ricoh USA, Inc.,
removed to this Court the following month. [ECF No. 1]. The
parties' joint discovery plan required that Federal Rule
of Civil Procedure 26(a)(1) initial disclosures be made on
June 21, 2017. [ECF No. 5, PageID 29]. But on November 2,
2017, Ricoh filed a motion to compel Nelson's initial
disclosures, as well as written responses to Ricoh's
interrogatories and requests for production of documents.
[ECF No. 10]. An exhibit to the motion evidences Ricoh's
attorney's repeated email communications imploring
Nelson's attorney to provide required discovery. [ECF No.
10-2]. After the motion to compel was referred for a hearing
and determination, this Court scheduled a hearing for
December 20, 2017, and ordered Nelson to respond to the
motion by November 16, 2017. [ECF Nos. 11, 12]. Nelson filed
no response, so the Court ordered her to show cause by
December 4, 2017 why this matter should not be dismissed
under Federal Rule of Civil Procedure 41. [ECF No. 13]. As of
the date of this Order, Nelson has filed neither a response
to the motion to compel or to the show cause order.
motion requests, among other relief, that Nelson's
lawsuit be dismissed. [ECF No. 10, PageID 63]. Federal Rule
of Civil Procedure 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)
… operates as an adjudication on the merits.
See also Schafer v. City of Defiance Police
Dep't, 529 F.3d 731, 736 (6th Cir. 2008) (Rule 41(b)
authorizes a court “to dismiss an action for failure of
a plaintiff to prosecute the claim or to comply with the
Rules or any order of the court.”). And this
Court's local rules provide that when “the parties
have taken no action for a reasonable time, the court may, on
its own motion after reasonable notice or an application of a
party, enter an order dismissing … the case unless
good cause is shown.” E.D. Mich. LR 41.2.
determine whether dismissal is warranted, the Court must
consider four factors: “(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.” Mulbah v. Detroit
Bd. of Educ., 261 F.3d 586, 589 (6th Cir. 2001). Here,
Nelson's multiple failures-to provide initial
disclosures, to respond to discovery requests, to respond to
the motion to compel, or to respond to the show cause
order-demonstrate willfulness or, at the very least, fault on
Nelson's part. Ricoh is prejudiced by being deprived of
basic discovery from Nelson. Ricoh's motion to compel
requested dismissal, and the Court warned Nelson that her
failure to respond to the show cause order could result in
dismissal of the case. And none of the prior attempts to
prompt Nelson to prosecute her case-Ricoh's repeated
email requests, the motion to compel, or the show cause
order-have been successful. Dismissal should generally be the
last resort, but it appears to be necessary here. The Court
also recommends that Ricoh's request for monetary
sanctions under Federal Rule of Civil Procedure 37 be
granted. [ECF No. 10, PageID 64].
Court RECOMMENDS that Ricoh's requests
in its motion to compel [ECF No. 10] that
this action be dismissed and that it be awarded costs and
fees be GRANTED.
TO THE PARTIES REGARDING OBJECTIONS
party to this action may object to and seek review of this
Report and Recommendation, but must act within fourteen days
of service of a copy hereof as provided for in 28 U.S.C.
§ 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Failure to file
specific objections constitutes a waiver of any further right
of appeal. Thomas v. Arn, 474 U.S. 140 (1985);
Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir.
1991); United States v. Walters, 638 F.2d 947 (6th
Cir. 1981). Filing objections which raise some issues but
fail to raise others with specificity will not preserve all
objections that party might have to this Report and
Recommendation. Willis v. Secretary of HHS, 931 F.2d
390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of
Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
A copy of any objection must be served upon this Magistrate
Judge. E.D. Mich. LR 72.1(d)(2).
objection must be labeled as
“Objection #1, ” “Objection #2, ”
etc., and must specify precisely the
provision of this Report and Recommendation to which it
pertains. Not later than fourteen days after service of
objections, the non-objecting party must file a
response to the objections, specifically addressing
each issue raised in the objections in the same order and
labeled as “Response to Objection #1, ”
“Response to Objection #2, ” etc. The response
must be concise and proportionate in length and
complexity to the ...