United States District Court, M.D. Tennessee, Nashville Division
Honorable Denise Page Hood, Chief District Judge.
REPORT AND RECOMMENDATION
BARBARA D. HOLMES United States Magistrate Judge.
Order entered April 20, 2017 (Docket Entry No. 30), the
Honorable Denise Page Hood, Chief District Judge, referred
this action to the Magistrate Judge, pursuant to 28 U.S.C.
§§ 636(b)(1)(A) and (B), for consideration of all
pretrial matters. Pending before the Court is Defendants'
Joint Motion to Dismiss for Failure to Prosecute (Docket
Entry No. 28). For the reasons set out below, the undersigned
Magistrate Judge respectfully recommends that Defendant's
Joint Motion to Dismiss be GRANTED, and this action be
DISMISSED WITH PREJUDICE because of Plaintiff's failure
to prosecute the action.
Anderson (“Plaintiff”) filed this lawsuit on
September 20, 2016, seeking injunctive relief under the
Americans with Disabilities Act, 42 U.S.C. §§
12181, et seq., against two defendants. When the
lawsuit was filed, Plaintiff was represented by counsel.
However, prior to the initial case management conference,
counsel for Plaintiff moved to withdraw from the case on
January 19, 2017, citing irreconcilable differences with
Plaintiff over issues arising out of the management and
direction of the litigation. See Docket Entry No.
21. The Court permitted counsel to withdraw and granted
Plaintiff a thirty (30) day period within which to retain
substitute counsel or to notify the Court of his intention to
proceed pro se. See Order entered January 26, 2017
(Docket Entry No. 22). The Court also set a case management
conference on March 8, 2017, directed Plaintiff to appear at
the conference through counsel or pro se, and
directed the parties to both confer about resolution of the
case and to file an updated proposed case management order.
See Order entered January 30, 2017 (Docket Entry No.
24). In its Order, the Court specifically advised that
failure to comply with its instructions could result in the
imposition of sanctions.
failed to comply with the directive of the Court to either
find substitute counsel or notify the Court of his intention
to proceed pro se. Plaintiff also failed to appear
at the March 8, 2017, case management conference or otherwise
contact the Court about the conference. At the case
management conference, counsel for Defendants reported that
Plaintiff also failed to respond to their efforts to prepare
a joint proposed management order and to make a good faith
effort at case resolution. Defense counsel also indicated
that Defendants would be filing a motion to dismiss the
action, and the Court provided Plaintiff with a 21 day period
from the date of service of any motion to dismiss to file a
response. See Order entered March 9, 2017 (Docket
Entry No. 27). Plaintiff was specifically advised that his
failure to timely respond would indicate that there is no
opposition to the motion and the case would be dismissed.
Id. On March 16, 2017, Defendants filed a joint
motion to dismiss the action under Rule 41 of the Federal
Rules of Civil Procedure. See Docket Entry No. 28.
In their Joint Motion, Defendants also stated prominently on
the first page, in bold, all capital letters and underlined,
that “FAILURE TO RESPOND TO THIS MOTION WITHIN 21
DAYS OF SERVICE WILL RESULT IN THE MOTION BEING GRANTED
AND PLAINTIFF'S CLAIMS BEING DISMISSED WITH
PREJUDICE.” To-date, Plaintiff has not responded
to the motion.
16(f)(1) of the Federal Rules of Civil Procedure provides
that “on motion or on its own, the Court may issue any
just orders, including those authorized by Rule
37(b)(2)(A)(ii)-(vii), if a party . . . (C) fails to obey a
scheduling or other pretrial order.” Pursuant to Rule
37(b)(2)(A)(v), the Court may dismiss an action as a
sanction. In addition, it is well-settled that federal trial
courts have the inherent power to manage their own dockets.
Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8
L.Ed.2d 734 (1961). Rule 41(b) of the Federal Rules of Civil
Procedure further permits the Court to dismiss an action upon
a showing of a clear record of delay, contumacious conduct,
or failure to prosecute by a plaintiff. See Carter v.
City of Memphis, Tennessee, 636 F.2d 159, 161 (6th Cir.
of this action pursuant to Rule 16(f)(1) and Rule 41(b) is
warranted because of Plaintiff's failure to comply with
the specific directive from the Court to file a notice
regarding the status of his representation, his failure to
appear at the March 8 case management conference, his failure
to respond to the pending motion to dismiss, and his general
failure to actively litigate the lawsuit once his former
counsel withdrew from the action. Dismissal with prejudice is
appropriate in light of the impasse in further proceedings in
the action caused by Plaintiff's failure to prosecute,
his apparent disinterest in the action, and his failure to
respond to a pending motion seeking dismissal of the action.
Plaintiff was specifically warned on several occasions about
the consequences of his failure comply with the directives of
the Court and his failure to act. Neither the Court nor
Defendants should be required to expend any further resources
in the action given Plaintiffs failure to prosecute, and a
sanction lesser than dismissal is not warranted.
the undersigned Magistrate Judge respectfully RECOMMENDS that
Defendants' Joint Motion to Dismiss (Docket Entry No. 28)
be GRANTED, and that this action be DISMISSED WITH PREJUDICE
in its entirety pursuant to Rule 16(f)(1) and Rule 41(b) of
the Federal Rules of Civil Procedure.
OBJECTIONS to this Report and Recommendation must be filed
with the Clerk of Court within fourteen (14) days of receipt
of this notice and must state with particularity the specific
portions of this Report and Recommendation to which objection
is made. Failure to file written objections within the
specified time can be deemed a waiver of the right to appeal
the District Court's Order regarding the Report and
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106
S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v.
Walters, 638 F.2d 947 (6th Cir. 1981).