Bradley v. Parker

          Terrence G. Berg United States District Judge

          REPORT AND RECOMMENDATION RULE 41(B) AND MOTIONS TO DISMISS (Dkt. 11, 12)

          Stephanie Dawkins Davis United States Magistrate Judge

         I. PROCEDURAL HISTORY

         Plaintiff Wade Bradley filed a complaint on July 13, 2018. (Dkt. 1). The suit is against Jamie Parker, a resident of Benton Harbor, Michigan along with “State Farm/Heidi Lull.” (Dkt. 1, p. 2). Bradley asserts that this is personal injury and insurance contract action. Id. at 3. The only allegations in the complaint are that “Jamie beat me in the head in his front yard with a bat.” Id. at 3.

         On November 26, 2018, District Judge Terrence G. Berg referred this matter to the undersigned for all pretrial proceedings. (Dkt. 8). Defendant Jamie Parker filed a motion to dismiss on March 4, 2019, and defendant State Farm Insurance filed a motion to dismiss on March 5, 2019. (Dkts. 11 and 12).^[1] Bradley was ordered to file a response to these motions by April 15, 2019 and was warned that failure to respond may result in sanctions, including granting all or part of the relief requested by the moving parties. (Dkt. 15). Based on Bradley's failure to respond, the Court issued an order directing Bradley to show cause in writing by June 26, 2019 why the undersigned should not recommend that his complaint be dismissed due to his failure to file responses to the motions to dismiss. The Court's order permitted Bradley, alternatively, to file a response to the motions by June 26, 2019. (Dkt. 16). Bradley has not responded to the order to show cause. In the show cause order, the Court warned Bradley that “[f]ailure to timely or adequately respond in writing to this Order to Show Cause or timely file a response to the motions will result in a recommendation that the motions be granted or that the entire matter be dismissed under Rule 41(b).” Id. (emphasis in original).

         For the reasons set forth below, the undersigned RECOMMENDS that this DISMISSED under Rule 41(b) with prejudice as to defendants Parker and State Farm, and that the matter be DISMISSED without prejudice for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) as to defendant Hull.

         II. ANALYSIS AND CONCLUSIONS

         A. Rule 41(b) Dismissal

         Under Federal Rules 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.

         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 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, the first and second factors weigh in favor of dismissal.

         Moreover, 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). Additionally, a Rule 41(b) dismissal is an appropriate sanction for a pro se litigant's failure to provide the court with information regarding his current address. Watsy v. Richards, 1987 WL 37151 (6th Cir. 1987); White v. City of Grand Rapids, 34 Fed.Appx. 210, 211 (6th Cir. May 7, 2002) (finding that a pro se prisoner's complaint “was subject to dismissal for want of prosecution because he failed to keep the district court apprised of his current address”); Rogers v. Ryan, 2017 WL 5150884, at *2 (E.D. Mich. Nov. 7, 2017) (“A Rule 41(b) dismissal is an appropriate sanction for a pro se litigant's failure to provide the court with information regarding his current address.”).

         Importantly, despite the court's warnings that defendants' motions to dismiss may be granted and that his action may be dismissed, Bradley failed to respond to either of the courts' orders. (Dkt. 15, 16). The court clearly warned Bradley that a failure to respond to the motions to dismiss may result in sanctions, including granting all or part of the relief requested by defendants. (Dkt. 15). In the order to show cause, the Court also warned that “[f]ailure to timely or adequately respond in writing to this Order to Show Cause will result in a recommendation that the motions be granted or that the entire matter be dismissed under Rule 41(b).” (Dkt. 19). Despite these clear warnings, Bradley has provided no good reason why the undersigned should not dismiss the complaint. See ...