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Kuhnen v. Remington

United States District Court, M.D. Tennessee

November 8, 2017

SCOTT KUHNEN, Plaintiff
v.
DARREN REMINGTON, Defendant

          Jury Demand Judge

          REPORT AND RECOMMENDATION

          JOE B. BROWN United States Magistrate Judge

         TO: THE HONORABLE ALETA A. TRAUGER

         For the reasons stated below the Magistrate Judge recommends that the Plaintiff's claims against the remaining Defendant, Darren Remington, be dismissed without prejudice for failing to prosecute and obey Court orders.

         BACKGROUND

         The Plaintiff, proceeding pro se, paid the filing fee and filed his complaint on April 20, 2017 (Docket Entry 1). The complaint lays out alleged actions by Darren Remington and Susanne Gann, which reads much like a dime store novel involving a series of cases in the Middle District of Tennessee and in Arizona between the various parties. Service of process was obtained on both Gann and Remington (Docket Entries 5 and 6). Shortly thereafter the Defendant Gann and the Plaintiff entered a joint motion for an order of dismissal (Docket Entry 7), which was granted on August 21, 2017 (Docket Entry 12).

         Subsequently, the Clerk entered default as to the Defendant Remington (Docket Entry 13) on August 23, 2017. The Plaintiff took no further action in the matter and on October 3, 2017 (Docket Entry 14) the Plaintiff was directed to take some further action, either by moving to dismiss his complaint or by seeking a default judgment, either for a sum certain or for a non-sum certain amount. He was specifically warned that failure to take further action in the matter within 28 days could result in a recommendation by the Magistrate Judge to dismiss his case for failure to prosecute.

         As of the date of this report and recommendation the Plaintiff has taken no action in the matter since August 2, 2017, nor has he requested additional time to take action.

         LEGAL DISCUSSION

         The Sixth Circuit has set a four-factor test to determine if dismissal for failure to prosecute is appropriate.

(1) whether the party's failure to cooperate 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 the less drastic sanctions were imposed or considered before dismissal was granted. Schafer v. City of Defiance Police Department, 5 ...

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