United States District Court, M.D. Tennessee, Nashville
JEFFREY FRENSLEY MAGISTRATE JUDGE.
ORDER GRANTING PLAINTIFFS' MOTION TO DISMISS
WITHOUT PREJUDICE (DKT. 19) AND DENYING AS MOOT
DEFENDANTS' MOTIONS TO DISMISS FOR FAILURE TO PROSECUTE
(DKT. 15) AND TO STRIKE OR IN THE ALTERNATIVE FOR PERMISSION
TO FILE A REPLY (DKT. 20)
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
a negligence action against a Nashville La Quinta Inn for
failing to adequately protect its guests from outside
intruders. Tar-vis Williams and Corie Green
(“Plaintiffs”) were followed to their room during
a stay at La Quinta, tortured, and robbed. Dkt. 1-1.
originally filed this action in state court in August, 2016
and Defendants removed it to federal court in September. Dkt.
1. After the case was removed Plaintiffs did little to
advance this litigation: they twice failed to submit proposed
case management orders, did not appear at the Initial Case
Management Conference, and did not serve or respond to any
discovery during the discovery period, which ended on June
22, 2017. See Dkts. 15 at Pg ID 2-3; 20-1 at Pg ID
119; 21 at Pg ID 127.
March, 2017 Defendants filed a Motion to Dismiss for Failure
to Prosecute, Dkt. 15. Plaintiffs did not respond to
Defendants Motion to Dismiss until June 9, 2017, when they
also filed their own Motion to Dismiss. Dkts. 17; 19.
parties agree that this case should be dismissed. Dkt. 18
(Plaintiffs' Mot. to Dismiss); Dkt. 21 (Defendant's
Mot. in Opposition to Plaintiffs' Mot. to Dismiss). Their
only disagreement is whether the dismissal should be with or
without prejudice. Id. Defendants also argue they
are entitled to attorneys' fees for defending against
this action. Dkt. 21. For the reasons outlined below,
Plaintiffs' Motion to Dismiss, Dkt. 18, is GRANTED
without prejudice and without the condition that Plaintiffs
pay Defendants' attorneys' fees. Defendants'
Motion to Dismiss for Failure to Prosecute and their Motion
to Strike or in the Alternative for Permission to File a
Reply, Dkts. 15; 20, are DENIED as moot.
August 19, 2015 three assailants followed Plaintiffs to their
room in a Nashville La Quinta, forced their way into that
room, and then shackled and assaulted Plaintiffs. Dkt. 1-1 at
Pg. ID 9. The assailants beat Plaintiff Williams and
burned him with a hot iron, so that he would reveal where
Plaintiffs were storing their money and other valuables.
Id. The assailants also threatened to kill
Plaintiffs. Id. After the assault, Plaintiff
Williams was hospitalized for his burns and other injuries.
Id. At Pg ID 9-10.
year later, Plaintiffs filed this action in Tennessee state
court against La Quinta Development Partners, L.P, and its
subsidiary property management company-BRE/LQ Properties
LLC-which owned and operated the La Quinta at which
Plaintiffs were assaulted. Dkt. 1-1. In their Complaint,
Plaintiffs alleged that Defendants breached their duty of
care by failing to provide adequate security for their
guests; particularly given the hotel's location in a
known high-crime area. Dkt. 1-1 at Pg ID 10. Plaintiffs
requested 2 million dollars in compensatory damages and 5
million dollars in exemplary and punitive damages. Dkt. 1-1
at Pg ID 12.
removed this case to federal court on September 13, 2016,
Dkt. 1, and filed their Answer to the Complaint on September
20, 2016. Dkt. 6. Defendants then submitted their first,
Proposed Case Management Order on November 7, 2016. Dkt. 7.
The Court set the Initial Case Management Conference for
December 8, 2016. Dkt. 8. Defendants filed a second Proposed
Case Management Order on December 5, 2016. Dkt. 9.
original counsel was not admitted in the Middle District of
Tennessee, so Plaintiffs' local counsel, Attorney Luvell
Glan-ton, entered an initial appearance on December 7, 2016.
Dkt. 10. On December 8, 2016, Defendants filed a motion on
behalf of Plaintiffs to continue the Initial Case Management
Conference until January 11, 2017, Dkt. 11, which the Court
granted. Dkt. 12.
advance of that rescheduled case management conference,
Defendants submitted a third Proposed Case Management Order,
which noted that Plaintiffs had not initiated any preparation
of the proposed order as they were required to under Local
Rule 16.01(d), nor had they responded to any drafts of the
proposed orders that Defendants had sent to them. Dkt. 13 at
Pg ID 46, n. 1. Plaintiffs did not appear at the rescheduled
case management conference on January 11, 2017. Dkt. 14 at Pg
ID 51, and the Court adopted Defendants' proposed
discovery and briefing schedule. Id.
March 17, 2017, Defendants filed a Motion to Dismiss for
Failure to Prosecute under Fed.R.Civ.P. 37(c)(1) and 41(b).
Dkt. 15. Defendants seek dismissal under either Rule 37(c)(1)
(because Plaintiffs have not complied with court orders to
initiate the case management process, appear at the case
management conference, and serve their Initial Disclosures
under Fed.R.Civ.P. 26); or under Rule 41(b) (because
Plaintiffs have not prosecuted their case); or under both
rules. Dkt. 15 at Pg ID 57, 59.
case was reassigned to Judge Terrence Berg in the Eastern
District of Michigan on April 11, 2017 at which time
Defendants' Motion to Dismiss for Failure to Prosecute,
Dkt. 15, was still pending without a response.
9, 2017 Plaintiffs filed both an opposition to
Defendants' Motion to Dismiss, Dkt. 15, and their own
Motion to Dismiss Pursuant to Fed.R.Civ.P. 41(a)(2). Dkts.
their response to Defendants' Motion to Dismiss
Plaintiffs “acknowledg[ed] that they [had] failed to
initiate the preparation and submission of a proposed case
management order, ” and “that they [had] made
minimal effort to move this case forward.” Dkt. 17 at
Pg ID 103. Plaintiffs' counsel's justification for
this was that he had more recently joined the case as local
counsel-because lead counsel was not admitted in the Middle
District of Tennessee-had only received one electronic notice
in the case since entering his appearance, and was thus
unaware of Defendants' Motion to Dismiss for Failure to
their Motion for Order Dismissing Case Pursuant to
Fed.R.Civ.P. 41(a)(2), Plaintiffs state they can no longer
afford to litigate the case and assert that dismissal without
prejudice or “curative conditions” (i.e.,
attorneys' fees) is warranted because Defendants have not
spent significant time or money preparing for trial, neither