United States District Court, M.D. Tennessee, Nashville Division
Honorable Aleta A. Trauger, District Judge
REPORT AND RECOMMENDATION
BARBARA D. HOLMES United States Magistrate Judge
civil action is before the Magistrate Judge for pretrial
management and to conduct any necessary proceedings under 28
U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules
of Civil Procedure. See Docket Entry No. 29. For the
reasons set forth below, the undersigned respectfully
recommends that this action be dismissed.
January 25, 2017, Mona Swayne (“Plaintiff”) filed
this lawsuit against B&R Salvage of Tennessee, Inc.
(“Defendant”), alleging discriminatory employment
actions by Defendant and seeking relief under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. Defendant filed an answer, and pretrial proceedings
began in the case pursuant to a case management order.
See Docket Entry Nos. 7 and 10. The action is
currently set for a jury trial on September 4, 2018.
See Order entered May 12, 2017 (Docket Entry No.
served its initial discovery requests upon Plaintiff on June
20, 2017. However, Plaintiff failed to respond to her
counsel's attempts to obtain discovery responses from
her, prompting counsel to obtain two extensions of time to
serve discovery responses. See Docket Entry Nos. 13
and 15. Plaintiff's counsel thereafter moved to withdraw
from the action because of Plaintiff's failure to
communicate with counsel and to cooperate with counsel's
attempts to provide responses to Defendant's discovery
requests. See Motion to withdraw (Docket Entry No.
16). By Order entered September 18, 2017 (Docket Entry No.
18), the motion to withdraw was granted and Plaintiff's
counsel was permitted to withdraw. Plaintiff was given thirty
(30) days within which to have new counsel enter an
appearance of record or to inform the Court that she will
represent herself going forward. Id. Plaintiff was
specifically warned that her failure to comply with the Order
may result in the dismissal of her case for failure to
prosecute. The Order was sent, by certified mail return
receipt requested, to three addresses for Plaintiff listed in
attachments to the motion to withdraw. Id.
docket reflects that the September 18, 2017, Order was
received and signed for by Plaintiff on September 30, 2017,
at one of the three addresses to which it was
sent. See Docket Entry No. 20. However,
Plaintiff failed to respond to the Order by either obtaining
new counsel or notifying the Court that she intends to
October 19, 2017, Defendant filed a motion to compel
responses from Plaintiff to the outstanding discovery
requests and to deem admitted the requests for admissions
that were served upon Plaintiff. See Docket Entry
No. 25. The certificate of service for the motion shows that
it was sent to the 213 Irvine Ct. address at which Plaintiff
had received mail from the Court. However, Plaintiff has not
responded in any manner to Defendant's motion. Defendant
has recently filed a motion to modify the case management
order deadlines because of Plaintiff's failure to respond
to the initial written discovery requests. See
Docket Entry No. 27.
the clear directive from the Court to Plaintiff to either
obtain new counsel or notify the Court that she intends to
represent herself, Plaintiff remains unrepresented by counsel
and has not taken any steps to indicate her desire to
represent herself in a pro se capacity. Furthermore,
Plaintiff has not responded in any manner to Defendant's
motion to compel, and it is apparent that Plaintiff has taken
no steps to respond to the written discovery that was served
upon her over six months ago.
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 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 Bishop v.
Cross, 790 F.2d 38 (6th Cir. 1986); Patterson v.
Township of Grand Blanc, 760 F.2d 686, 688 (6th Cir.
1985) (per curiam); Carter v. City of Memphis,
Tennessee, 636 F.2d 159, 161 (6th Cir. 1980).
the Court acknowledges the difficult situation created for
the pro se Plaintiff when her counsel withdrew from
the action, dismissal of the instant 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. Despite a specific warning from the Court
about the consequences of noncompliance with the deadline set
by the Court to either retain counsel or inform the Court of
her intention to proceed pro se, Plaintiff failed to
respond in any manner to the Court's directive.
Furthermore, dismissal of the action is also appropriate in
light of the impasse in the proceedings caused by
Plaintiff's failure to engage in discovery and to take
any steps to prosecute the lawsuit pro se. See
Vesely v. Cuyahoga Metro. Hous. Auth., 130 F.R.D. 83, 85
(N.D. Ohio 1990). Defendant is entitled to obtain discovery
from Plaintiff and to take the steps necessary to defend the
lawsuit. However, Plaintiff has shown, both when she was
represented by counsel and now when she is pro se,
that she will not respond to Defendant's written
discovery requests. Plaintiff has also failed to respond in
any manner to Defendant's pending motion to compel.
Neither the Court nor Defendant should be required to expend
further resources in the action without Plaintiff first
taking the basic steps necessary to prosecute the action
going forward. Further, given the threshold nature of the
issue at hand, a lesser sanction than dismissal is not
warranted. The Court should not have to make repeated
warnings to Plaintiff as a predicate to her meeting her
obligations as a plaintiff in this litigation.
upon the foregoing, the undersigned Magistrate Judge
respectfully RECOMMENDS that this action be DISMISSED WITH
PREJUDICE pursuant to Rules 16(f)(1) ...