United States District Court, E.D. Michigan, Southern Division
Anthony P. Patti, Mag. Judge.
OPINION AND ORDER DISMISSING DEFENDANT CHRISTINA
BILLINGS WITH PREJUDICE
E. LEVY, UNITED STATES DISTRICT JUDGE.
Anthony Murdock filed the complaint in this matter on June 7,
2017. (ECF No. 1.) Defendant Christina Billings was served on
November 9, 2017. (ECF No. 17.) On February 7, 2019,
Plaintiff requested a clerk's entry of default as to
Defendant Billings because Defendant failed to plead or
otherwise defend in accordance with Federal Rule of Civil
Procedure 12. (ECF No. 42.) The clerk entered the default on
February 8, 2019. (ECF No. 43.) To this date, Plaintiff has
not filed a motion for default judgment. See Fed. R.
Civ. P. 55.
September 16, 2019, the Court ordered Plaintiff to show cause
in writing by September 30, 2019 why this case should not be
dismissed for Plaintiff's failure to prosecute as to
Defendant Billings, pursuant to Eastern District of Michigan
Local Rule 41.2. (ECF No. 47.) Plaintiff did not file any
document by September 30, 2019 and, even as of today, has not
filed anything in response to the Court's order. Thus,
Plaintiff did not comply with the Court's order and has
not shown cause why this case should not be dismissed with
prejudice as to Defendant Billings for failure to prosecute.
are four factors that a district court considers in
dismissing 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). “Although typically none of the factors is
outcome dispositive . . . a case is properly dismissed by the
district court where there is a clear record of delay or
contumacious conduct.” Id. At 363.
Plaintiff's conduct constitutes a clear record of delay
supporting dismissal for failure to prosecute. Plaintiff, who
has been otherwise active in this case,  has been
completely silent as to the issue of Defendant Billings'
default after requesting the clerk's entry on February 8,
2019. Plaintiff had ample time to move for default judgment,
or, following this Court's September 16, 2019 show cause
order, to demonstrate why Plaintiff needed more time.
Nevertheless, Plaintiff neglected to pursue his case. This
conduct “shows willfulness and fault in that
[Plaintiff] was at best extremely dilatory in not pursuing
[his] claim, which indicates an intention to let [his] case
lapse.” Shafer v. City of Defiance Police
Dept., 529 F.3d 731, 739 (6th Cir. 2008). This factor
supports the finding that Plaintiff's conduct amounts to
a failure to prosecute.
this Court's September 16, 2019 show cause order put
Plaintiff “indisputably on notice” that his claim
against Defendant Billings depended on Plaintiff's
continued activity in the case. See Id. at 740.
Plaintiff had two weeks to respond and failed to do so. This
“key” factor therefore weighs heavily in favor of
failure to prosecute. See id.
additional factor in determining failure to prosecute is
whether this Court considered other lesser sanctions before
dismissal. However, the Sixth Circuit has “never held
that a district court is without power to dismiss a
complaint, as the first and only sanction, solely on the
basis of the plaintiff's counsel's neglect” and
is “loathe to require the district court to incant a
litany of the available sanctions.” Id. at
738. In this case, dismissal with prejudice is the first
sanction for failing to prosecute, but it is also the
appropriate sanction given Plaintiff's ample notice that
failure to pursue the claim would result in dismissal.
there is no evidence that the pendency of this litigation
against Defendant Billings prejudices her or the other
remaining defendant in this case, Trinity Services Group.
Though this factor leans against dismissal, it is outweighed
by Plaintiff's marked failure to pursue his own case as
to Defendant Billings, even with the Court's
for failure to prosecute is available to the district court
“as a tool to effect management of its docket and
avoidance of unnecessary burdens on the tax-supported courts
[and] opposing parties.” Knoll v. Am. Tel. &
Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999) (internal
quotations omitted). “A district court must be given
substantial discretion in serving these tasks.”
for the reasons set forth above, the case is dismissed with
prejudice as to Defendant Billings for ...