United States District Court, E.D. Michigan, Southern Division
M. Lawson United States District Judge.
REPORT AND RECOMMENDATION PURSUANT TO FEDERAL RULE OF
CIVIL PROCEDURE 41(B)
Stephanie Dawkins Davis United States Magistrate Judge.
9, 2016, plaintiff Rodrick Fedal Wilson filed the instant
suit. (Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and
Local Rule 72.1(b)(3), District Judge David M. Lawson
referred this matter to the undersigned for the purpose of
reviewing the Commissioner's unfavorable decision. (Dkt.
4). On March 31, 2017, the undersigned issued an Order to
Show Cause why the case should not be dismissed based on
plaintiff's failure to serve the summons and complaint in
this matter. (Dkt. 7). Plaintiff's counsel timely
responded to the Order, stating that the failure to serve the
summons and complaint was attributable to the inadvertence of
plaintiff's counsel. (Dkt. 8). On November 8, 2017, the
Court issued a scheduling order which required plaintiff to
file his motion for summary judgment no later than December
8, 2017. (Dkt. 13). On March 2, 2018, when no motion had been
filed, the Court issued an Order to Show Cause why
plaintiff's complaint should not be dismissed for failure
to comply with the scheduling order requiring the filing of a
motion for summary judgment some three months prior. (Dkt.
the date of this Report and Recommendation, plaintiff has
neither filed his motion for summary judgment, nor filed a
response to the Court's March 2018 Order to Show Cause.
Consequently, for the reasons set forth below, the
undersigned RECOMMENDS that plaintiff's
complaint against the Commissioner be
DISMISSED under Federal Rule of Civil
ANALYSIS AND RECOMMENDATION
Federal Rule of Civil Procedure 41(b), a federal court may
sua sponte dismiss a claim for failure to prosecute
or to comply with an order of the court. Link v. Wabash
R.R. Co., 370 U.S. 626, 630-32 (1962); Steward v.
City of Jackson, 8 Fed.Appx. 294, 296 (6th Cir. 2001).
Indeed, the “authority of a federal trial court to
dismiss a plaintiff's action with prejudice because of
his failure to prosecute cannot seriously be doubted.”
Link, 370 U.S. at 629. “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.”
Link, 370 U.S. at 629-630. “[D]istrict courts
possess broad discretion to sanction parties for failing to
comply with procedural requirements.” Tetro v.
Elliott Popham Pontiac, Oldsmobile,
Buick, and GMC Trucks, Inc., 173
F.3d 988, 991 (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 sanctions
were imposed or considered before dismissal was ordered.
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643
(6th Cir. 2005) (citing Knoll v. American Tel. & Tel.
Co., 176 F.3d 359, 363 (6th Cir. 1999)).
balance, these factors weigh in favor of dismissal here. With
respect to the first factor, even after the Court warned
Wilson that failure to file his motion would result in
dismissal of his case, Wilson failed to either file his
motion or explain to the Court his inability to do so. Thus,
given the Court's explicit reminder, while it is not
clear that Wilson's failure to respond was committed in
bad faith, it cannot be said that the omission was a mere
oversight, and in any event is “certainly willful and
with fault.” Saleh v. Comm'r of Soc. Sec.,
2015 WL 1130995, at *2 (E.D. Mich. Mar. 12, 2015) (quoting
Morley v. Comm'r of Soc. Sec., 2013 WL 2051326,
at *1 (E.D. Mich. May 14, 2013)).
the second factor, “defendants cannot be expected to
defend an action, ” that plaintiff has
“apparently abandoned.” White v.
Bouchard, 2008 WL 2216281, *5 (E.D. Mich. 2008). In this
regard, the defendant is left to defend this matter without
any clue as to plaintiff's legal analysis supporting his
claim(s) of error in the administrative proceedings.
Plaintiff's sole allegation concerning error states,
“The conclusions and findings of fact of the Defendant
are not supported by substantial evidence and are contrary to
law and regulation and the Administrative Law Judge abused
his discretion and committed an error of law.” (Dkt. 2,
Complaint at ¶ 7). Requiring defendant to commit the
time and resources necessary to address every potential error
for arguments not made is both inefficient and unmindful of
the manpower costs - which are not unlimited - of such an
exercise. Imposing what, in this context, may be a somewhat
intangible cost upon defendant is nevertheless prejudicial to
the Commissioner's ability to craft a defense. Therefore,
the first and second factors weigh in favor of dismissal.
based on the warning given to plaintiff, the third factor
also supports dismissal. This court has regularly dismissed
cases under Rule 41(b) after a plaintiff has been warned of
dismissal and failed to comply with court orders without
explanation, where defendants expended resources on an
abandoned action and lesser sanctions would prove useless.
See e.g., Croton v. Recker, 2012 WL
3888220, at *2 (E.D. Mich. Sept. 7, 2012). Plaintiff failed
to file a motion for summary judgment pursuant to the
Court's scheduling order. (Dkt. 13). The Court then
warned plaintiff in March 2018 that a failure to respond to
the show cause order or file a motion for summary judgment
“will result in a recommendation that the
motion be granted or that the entire matter be dismissed
under Rule 41(b).” (Dkt. 14) (emphasis in
original). As noted above, the Court's warning regarding
the consequences of failing to file a motion for summary
judgment followed an earlier warning for dismissal based on
plaintiff's failure to serve the summons and complaint.
The latter warning was heeded; the former was not. Indeed,
despite the Court's clear warning, plaintiff has provided
no reason as to why the undersigned should not recommend
dismissal of his case. See Labreck v. U.S. Dep't of
Treasury, 2013 WL 511031, at *2 (E.D. Mich. 2013)
(recommending dismissal for plaintiff's failure to comply
with orders of the court), adopted by 2013 WL 509964
(E.D. Mich. 2013).
given the need for an order to show cause in March 2017 to
prompt plaintiff to simply serve process on the Commissioner,
followed by plaintiff's failure to heed the Court's
scheduling order, and his subsequent failure to respond to
the Court's March 2018 order to show cause, the
undersigned sees no utility in considering or imposing lesser
sanctions. Thus, on the whole, these factors support
dismissal for failure to prosecute. “This outcome is
consistent with the prevailing practice throughout this
circuit.” Tabor v. Comm'r of Soc. Sec.,
2016 WL 9149515, at *1 (E.D. Mich. Sept. 26, 2016)
(collecting cases dismissing Social Security plaintiff's
case due to failure to prosecute under Rule 41(b)). Indeed, a
sua sponte dismissal may be justified by a
plaintiff's “apparent abandonment of [a]
case.” White, 2008 WL 2216281, at *5 (citing
Washington v. Walker, 734 F.2d 1237, 1240 (7th Cir.
1984)); see also Labreck 2013 WL 511031, at *2;
McMillian v. ...