United States District Court, W.D. Michigan, Southern Division
ROBERT J. JONKER JUDGE.
REPORT AND RECOMMENDATION
Kent United States Magistrate Judge.
an action brought by pro se plaintiffs Alvin Jamison
and Richard Johnston. This matter is now before the Court on
“Defendants' Motion to Dismiss Amended Complaint
under Fed.R.Civ.P. Rule 12(b)(6)” (ECF No. 40) and
“Defendants' Motion to Dismiss Amended Complaint
under Fed.R.Civ.P. Rule12(b)(6)” (ECF No. 41). The
motions are unopposed.
February 21, 2018, pro se plaintiffs, both of whom
are incarcerated in the State of Nevada, filed a complaint in
the United States District Court for the Eastern District of
Michigan (ECF No. 1). The case was transferred to this
district (ECF No. 7). Shortly thereafter, the parties filed
about 200 pages of motions and briefs with respect to the
sufficiency of the complaint. Ultimately, the Court entered
an order directing plaintiffs to file an amended complaint
consistent with its instructions (ECF No. 33) and an order
denying defendants' motion for a TRO (ECF No. 36).
filed a first amended complaint (ECF No. 39), and defendants
responded by filing two motions to dismiss. While both
dispositive motions are filed by “defendants, ”
each was e-filed by a different defendant, i.e.,
“Law Office of Catherine L. Wolfe PLC” e-filed a
motion to dismiss and brief (ECF Nos. 40 and 42) and
“Catherine L. Wolfe” e-filed a motion to dismiss
and brief (ECF Nos. 41 and 43). Defendants filed three other
briefs which appear to be copies of one or the other
previously filed briefs (ECF Nos. 44, 45 and 46). Defendants
also filed proposed orders to dismiss (ECF Nos. 47 and 48).
further complicate matters, plaintiffs have failed to keep
the Court apprised of their current addresses. The
Court's Order denying the TRO served on plaintiff
Johnston was returned as undeliverable. See Returned
Mail (ECF No. 51). Similarly, defendants' service of
documents mailed via priority mail to plaintiff Johnston were
returned to defendants marked “Return to Sender”.
See Notices (ECF Nos. 53, 54, 55 and 56). Finally,
on May 8, 2019, plaintiff Jamison mailed a letter to the
Clerk's Office stating that he has been ill, had no
contact with co-plaintiff, and requested a copy of the first
amended complaint. See Letter (ECF No. 58). However,
there is no evidence that Jamison submitted payment for the
Plaintiff Richard Johnston
Johnston has made no effort to prosecute this action. He has
failed to respond to defendants' motions to dismiss and
has failed to keep the Court apprised of his address. The
local court rules provide that “[a] judicial officer
may issue an order to show cause why a case should not be
dismissed for lack of prosecution or for failure to comply
with these rules” and that if good cause is not shown,
“a district judge may enter an order of dismissal with
or without prejudice, without or without costs.” W.D.
Mich. LCivR 41.1. The local court rules further provide that
“[f]ailure of a plaintiff to keep the Court apprised of
a current address shall be grounds for dismissal for want of
prosecution.” Id. Plaintiff's action is
subject to dismissal for want of prosecution because he has
failed to keep the Court apprised of his current address as
required by W.D. Mich. LCivR 41.1. Id. While W.D.
Mich. LCivR 41.1 contemplates the issuance of an order to
show cause prior to dismissal, such an order would be a
useless act because the Court has no means to contact
plaintiff. Accordingly, plaintiff Johnston's claims
should be dismissed for want of prosecution.
Plaintiff Alvin Jamison
served plaintiff Jamison with their motions to dismiss the
first amended complaint pursuant to Fed.R.Civ.P. 12(b)(6).
Under Rule 12(b) (6), a complaint may be dismissed for
failure to state a claim if it fails to give the defendants a
fair notice of the claim and the grounds upon which it rests.
Bell Atlantic Corporation v. Twombly, 550 U.S. 544,
555 (2007). Here, defendants seek to dismiss the first
amended complaint because it failed to state a claim upon
which relief can be granted and it failed to comply with the
Court's November 19, 2018 Order, which directed
plaintiff's to file an amended complaint
“consistent with this order and the court rules.”
Order (ECF No. 33). Specifically, defendants point out that
plaintiffs did not drop their legal malpractice claims
against the individual defendant, Catherine L. Wolfe;
plaintiffs included multiple unrelated factual allegations in
numbered paragraphs contrary to Fed.R.Civ.P. 10(b)'s
requirement that claims in numbered paragraphs be
“limited as far as practicable to a single set of
circumstances;” the pages include margins in excess of
one inch with writing which “extends to the back side
of pages;” and that plaintiffs failed to state a claim
for legal malpractice. See Defendants' Briefs
(ECF Nos. 42 and 43).
discussed, neither plaintiff filed a response to the motions
to dismiss. Failure by a plaintiff to respond to a motion to
dismiss constitutes a forfeiture of the claims to which the
motion is addressed. See Notredan, L.L.C. v. Old Republic
Exchange Facilitator Co., 531 Fed.Appx. 567, 569 (6th
Cir., July 29, 2013) (failure to respond to an argument that
a claim is subject to dismissal “amounts to a
forfeiture of [such] claim”). Likewise, opposition to a
motion to dismiss is waived, and dismissal appropriate, where
the plaintiff fails to respond thereto. See Humphrey v.
United States Attorney General's Office, 279
Fed.Appx. 328, 331 (6th Cir., May 15, 2008) (“if a
plaintiff fails to respond or otherwise oppose a
defendant's motion, then the district court may deem the
plaintiff to have waived opposition to the motion”);
Allen v. NCL America LLC, 741 Fed.Appx. 292, 295-96
(6th Cir., July 10, 2018) (by failing to respond to motion to
dismiss, plaintiff waived opposition thereto); Moody v.
CitiMortgage, Inc., 32 F.Supp.3d 869, 875 (W.D. Mich.
2014) (“[a] plaintiff must oppose a defendant's
motion to dismiss or otherwise respond or he waives
opposition to the motion”); Thorn v. Medtronic
Sofamor Danek, USA, Inc., 81 F.Supp.3d 619, 631 (W.D.
Mich. 2015) (same). Accordingly, plaintiffs' first amended
complaint should be dismissed.
these reasons, I respectfully recommend that plaintiff
Richard Johnston's claims against defendants ...