United States District Court, W.D. Tennessee, Western Division
December 11, 2014
JOHNNY A. WHITE, Plaintiff,
ANDREA CZECK, Defendant
Johnny A. White, Plaintiff, Pro se, Memphis, TN.
For Andrea Czeck, Owner of E & A Protective Services Bravo, LLC, Defendant: Elizabeth S. Rudnick, LEAD ATTORNEY, LITTLER MENDELSON, PC - Memphis, Memphis, TN.
REPORT AND RECOMMENDATION
CHARMIANE G. CLAXTON, UNITED STATES MAGISTRATE JUDGE.
The instant case is before the Court, by way of Administrative Order 2013-05. On August 29, 2014, Defendant Andrea Czeck filed her Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) . (D.E. # 9). Local Rule 12.1 provides that " [a] party opposing a motion to dismiss must file a response within 28 days after the motion is served." To date, Plaintiff has not filed a response to the motion.
On November 6, 2014, the undersigned entered an order (D.E. #11) directing Plaintiff to show cause within fourteen days as to why the Court should not issue a Report and Recommendation that the motion at D.E. # 9 be granted. To date, no response to the Order to Show Cause has been filed.
If a plaintiff fails properly to prosecute an action, it can be dismissed either pursuant to the Court's inherent power to control its docket, or involuntarily under Fed.R.Civ.P. 41(b). Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Boudwin v. Graystone Insurance Co., 756 F.2d 399 (5th Cir.1985). The Sixth Circuit has held that dismissal for failure to prosecute is warranted where the Court affords a plaintiff a reasonable period of time to comply with orders before the dismissal occurs, see Harris v. Callwood, 844 F.2d 1254 (6th Cir.1988); Sepia Enterprises, Inc. v. City of Toledo, 462 F.2d 1315 (6th Cir.1972) (per curiam).
In determining whether to dismiss a complaint for failure to prosecute, the Court generally looks to four factors for guidance: (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. Knoll v. American Telephone & Telegraph Co., 176 F.3d 359, 363 (6th Cir.1999). Typically, none of the factors is outcome dispositive, and dismissal is entrusted to the discretion of the Court. Id. It is recommended that the first factor is met as it is Plaintiffs' fault for not prosecuting their case. There has been no activity by Plaintiff since he filed his case on March 10, 2014. The Defendant has been prejudiced in that she has taken substantial steps to further the case without cooperation from Plaintiff (see D.E. # 9 for Motion to Dismiss, memorandum and exhibit). As to the third and fourth factors, it is recommended that they weigh heavily against the Plaintiff. The Motion to Dismiss and Order to Show Cause made it clear that dismissal of the case was under consideration by the Court. Plaintiff had an opportunity to respond to the Motion and the Order to Show Cause and possibly avoid dismissal. Plaintiff has ignored the Court's orders and has failed to meaningfully participate in the case. Dismissal is appropriate pursuant to the Court's inherent power to control its docket.
Accordingly, it is RECOMMENDED that the Motion to Dismiss be GRANTED and Plaintiff's Complaint be involuntarily dismissed with prejudice pursuant to Fed.R.Civ.P. 41(b).