United States District Court, E.D. Michigan, Southern Division
A. Goldsmith United States District Judge
REPORT AND RECOMMENDATION: RULE 41B DISMISSAL AND
MOTION FOR JUDGMENT ON THE PLEADINGS (DKT. 16)
Stephanie Dawkins Davis United States Magistrate Judge
filed a pro se civil rights complaint on September
4, 2018, (Dkt. 1), and filed an amended complaint on
September 11, 2018. (Dkt. 5). On October 16, 2018, District
Judge Mark A. Goldsmith referred pretrial matters to the
undersigned. (Dkt. 13). On January 4, 2019, the defendants
filed a motion for judgment on the pleadings. (Dkt. 16). On
January 11, 2019, the Court ordered plaintiff to respond to
the motion for judgment on the pleadings by February 4, 2019.
(Dkt. 17). In that Order, the Court warned plaintiff that
“[f]ailure to file a response may result in
sanctions, including granting all or part of the relief
requested by the moving party.” (Dkt. 17, at
p. 1) (emphasis in original). On March 25, 2019, having
received no response from plaintiff, the Court ordered
plaintiff to show cause in writing on or before April 8,
2019, why the undersigned should not recommend that his
complaint be dismissed due to his failure to file a response.
(Dkt. 18, at p. 1). In the order to show cause the Court
warned plaintiff that “Failure to timely or
adequately respond in writing to this Order to Show Cause or
timely file a response to the motion for judgment on the
pleadings will result in a recommendation that the motion be
granted or that the entire matter be dismissed under Rule
41(b).” (Id.) (emphasis in original).
the date of this Report and Recommendation, plaintiff has not
filed a response to either the court's order requiring a
response to the motion for judgment on the pleadings or to
the order to show cause. Consequently, for the reasons set
forth below, the undersigned RECOMMENDS that
plaintiff's complaint be DISMISSED with
prejudice under Federal Rule of Civil Procedure 41(b) and
that defendants' motion for judgment on the pleadings be
TERMINATED as moot.
ANALYSIS AND CONCLUSIONS
Federal Rule of Civil Procedure 41(b), a federal court may
sua sponte dismiss a claim for failure to prosecute
or comply with an order. 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). Further,
“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, 173 F.3d at 992.
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)). On balance,
these factors weigh in favor of dismissal here. With respect
to the first factor, similar to the facts in White v.
Bouchard, 2008 WL 2216281, *5 (E.D. Mich. 2008),
“it is not clear whether plaintiff's failure to
prosecute is due to willfulness, bad faith or fault.”
Id. Regardless, “defendants cannot be expected
to defend an action, ” that plaintiff has
“apparently abandoned, not to mention the investment of
time and resources expended to defend this case.”
Id. For these reasons, both the first and second
factors weigh in favor of dismissal.
based on the warnings given to plaintiff, the third factor
also weighs in favor of dismissal. This court has regularly
dismissed cases under Rule 41(b) after a plaintiff has been
warned of dismissal, failed to comply with court orders
without explanation, and 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).
despite the court's warnings that defendants' motion
for judgment on the pleadings may be granted and that his
action may be dismissed, plaintiff failed to respond to
either of the courts' orders. (Dkt. 17, 18). The court
expressly warned plaintiff that a failure to respond to the
motion for judgment on the pleadings may result in sanctions,
including granting all or part of the relief requested by
defendants. (Dkt. 17). With plaintiff having filed no
response, the Court ordered plaintiff to show cause why the
action should not be dismissed for failure to file a
response. In the order to show cause, the Court warned that
“Failure to timely or adequately respond in
writing to this Order to Show Cause will result in a
recommendation that this matter be dismissed under
Rule 41(b).” (Dkt. 18). Despite the
unambiguous language of these warnings, plaintiff has
remained silent and thus provided no good reason why the
Court should not dismiss the complaint. 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).
in light of plaintiff's failure to respond to both the
Court's order to file a response and it's order to
show cause, the undersigned sees no utility in considering or
imposing lesser sanctions. Indeed, it appears that plaintiff
has not caused anything to be placed on the docket since
providing the Court with a summons for service to defendants
over six months ago (Dkt. 11). Thus, taken together, these
factors support dismissal for failure to prosecute. Plaintiff
is a pro se litigant and it is true that
“district courts should be especially hesitant to
dismiss for procedural deficiencies where, as here, the
failure is by a pro se litigant.” White v.
Bouchard, 2008 WL 2216281, at *5 (E.D. Mich. May 27,
2008) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d
Cir. 1996)). However, “dismissal is appropriate when a
pro se litigant has engaged in a clear pattern of
delay.” Jourdan v. Jabe, 951 F.2d 108, 110
(6th Cir. 1991). 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. Captain D's, 2007 WL
2436668, at *2 (D.S.C. 2007) (dismissing motion to dismiss
and to compel arbitration because of plaintiff's failure
to respond despite being advised of the applicable procedures
and possible consequences for failure to respond adequately).
undersigned concludes that, for the reasons discussed above,
plaintiff has effectively abandoned his case by failing to
file a response to the motion for judgment on the pleadings
as ordered and for failing to comply with the show cause
order of ...