United States District Court, E.D. Michigan, Southern Division
ORDER DISMISSING PLAINTIFF'S CASE
J. MICHELSON UNITED STATES DISTRICT JUDGE.
an action under the Americans with Disabilities Act in which
Regina Castro alleges that Ataner Corp. refused to provide
her with a disability accommodation as part of her job as a
FedEx delivery driver. Castro has failed to comply with four
court orders and has not taken any action on her case since
her attorney withdrew in September 2019. So the Court will
dismiss Castro's case for failure to prosecute and
failure to comply with court orders.
September 5, 2019, Castro's lawyer filed a motion to
withdraw. (ECF No. 14.) The Court ordered Castro to attend
the hearing. (ECF No. 16.) She failed to do so. On September
24, 2019, the Court entered an order granting counsel's
motion to withdraw. (ECF No. 18.) The Court further ordered
Castro to either retain successor counsel or to advise the
Court, within 45 days, that she wished to proceed pro. No.
lawyer has filed an appearance and the Court did not receive
any communication from Castro. On December 3, 2019, Castro
also failed to call in to a scheduled telephone conference.
On December 4, 2019, the Court ordered Castro to show cause
by December 13, 2019 why her case should not be dismissed.
(ECF No. 21.) Castro did not answer the show cause order.
Court explained in its show cause order, a court is permitted
to order sanctions, including dismissing the action, when a
party fails to appear at a scheduling conference. See
Fed.R.Civ.P. 16(f) (“If a party or its attorney fails
to appear at a scheduling or other pretrial conference . . .
the court may issue any just orders, including those
authorized by Rule 37(b)(2)(A)(ii)-(vii).”) The Court
may also dismiss an action for failure to comply with a court
order or failure to prosecute. See Fed.R.Civ.P. 41(b); E.D.
Mich. L.R. 41.2. Failure to prosecute is defined by Local
Rule 41.2 as when “the parties have taken no action for
a reasonable time.” Although dismissal is a harsh
sanction, it is an option available to the 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 citations
omitted). Knoll outlines four factors a court should consider
before dismissing a case under Rule 41(b) 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.
Id. Here, the first three factors weigh in favor of
Castro's failure to respond to the Court's orders or
to prosecute her case appears to be her own fault. She did
not retain successor counsel and so has been representing
herself. Each of the Court's orders have been served on
Castro at her home address and none have been returned as
undeliverable. The Court's order on the motion to
withdraw as plaintiff's counsel (ECF No. 18) was also
emailed to Castro. During the hearing on his motion to
withdraw, Castro's former counsel, Eric Stempien,
indicated that there had been a breakdown in his
communication with Castro and she had requested her file from
him via email, but had not responded to any of his other
attempts to communicate with her. Despite all indications
that Castro has received the Court's orders, she has
failed to comply with the Court's four most recent orders
or to communicate with the Court at all.
the Defendant has been prejudiced by Castro's conduct.
Castro filed this case over one year ago, but has yet to even
begin discovery. After the withdrawal of Stempien, there has
been no indication that Castro intends to proceed with this
case. Keeping this case open with no prospect of advancing it
would be prejudicial to the Defendant.
the Court issued an order to show cause on December 4, 2019
(ECF No. 21) that explicitly warned Castro that failure to
respond would result in dismissal. Castro did not respond to
the show cause order or otherwise contact the Court.
although the Court has not first imposed less drastic
sanctions, the Court has considered all possible sanctions
and determined that dismissal is the most appropriate remedy.
The Sixth Circuit has “never held that a district court
is without power to dismiss a complaint, as the first and
only sanction . . . and is loathe to require the district
court to incant a litany of the available lesser
sanctions.” Dudley El v. Michigan Dep't of
Corr., No. 17-2288, 2018 WL 5310761, at *3 (6th Cir. May
23, 2018) (quoting Schafer v. City of Defiance Police
Dep't, 529 F.3d 731, 737 (6th Cir. 2008) (internal
quotations omitted). Castro has failed to respond to any
court order or take any action to pursue her case. And
Castro's attorney has withdrawn from the case, leaving
the Court with no alternative means of communicating with
Court concludes that Castro has no intention to continue to
prosecute this case. The interests of the Defendant and the
proper functioning of the court ...