United States District Court, E.D. Michigan, Southern Division
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
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.
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
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
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.
ANALYSIS AND CONCLUSIONS
Rule 41(b) Dismissal
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.
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, 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). 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.”).
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 ...