United States District Court, M.D. Tennessee, Nashville Division
ATER M. MAJAK, Plaintiff,
JOHN L. HARRIS and AMY B. BURKS, Defendants.
Honorable Denise Page Hood, Chief Judge
REPORT AND RECOMMENDATION
ALISTAIR E. NEWBERN United States Magistrate Judge
case has been pending on the Court's docket with no
action taken by Plaintiff Ater M. Majak since he filed a
supplement to his complaint on September 27,
2016. (Doc. No. 4.) Defendants John L. Harris
and Amy B. Burks have not been served and have not appeared.
On October 20, 2017, the undersigned ordered Majak to show
cause within thirty days why his case should not be dismissed
for failure to prosecute and notified him that any failure to
respond could result in a recommendation that his case be
dismissed. (Doc. No. 5.) Majak has not responded to the
Rule of Civil Procedure 41(b) states that, “[i]f the
plaintiff fails to prosecute or to comply with these rules or
a court order, a defendant may move to dismiss the action or
any claim against it.” Fed.R.Civ.P. 41(b). It has long
been established that dismissal under this rule may be
ordered in the absence of a motion. Jourdan v. Jabe,
951 F.2d 108, 109 (6th Cir. 1991); see also Carter v.
City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980)
(“It is clear that the district court does have the
power under Rule 41(b), Fed. R. Civ. P., to enter a sua
sponte order of dismissal.”) (citing Link v.
Wabash R.R. Co., 370 U.S. 626 (1962)). In considering
whether dismissal under Rule 41(b) is appropriate, the Court
considers four factors: (1) the willfulness, bad faith, or
fault of the plaintiff; (2) whether the defendant has been
prejudiced by the plaintiff's conduct; (3) whether the
plaintiff was warned that failure to cooperate could lead to
dismissal; and (4) the availability and appropriateness of
other, less drastic sanctions. Carpenter v. City of
Flint, 723 F.3d 700, 703-04 (6th Cir. 2013) (quoting
Mulbah v. Detroit Bd. Of Educ., 261 F.3d 586, 590
(6th Cir. 2011)).
dismissal for failure to prosecute under Rule 41(b)
constitutes an adjudication on the merits “[u]nless the
dismissal order states otherwise.” Fed.R.Civ.P. 41(b).
The Sixth Circuit has cautioned that dismissal with prejudice
is a “harsh sanction” that should only apply in
extreme situations where there is a “clear record of
delay or contumacious conduct by the plaintiff.”
Carter, 636 F.2d at 161. Dismissal without prejudice
is “a comparatively lenient sanction” for which
the “controlling standards should be greatly relaxed
because the dismissed party is ultimately not irrevocably
deprived of his day in court.” Muncy v. G.C.R.
Inc., 110 Fed.Appx. 552, 556 n.4 (6th Cir. 2004).
Majak's failure to take any action after filing and
supplementing his complaint more than one year ago, despite
being warned of the consequences of failing to act, warrants
dismissal of this action under Rule 41(b). The fault plainly
lies with Majak for the lack of any progress in this action.
And, although the defendants have not been served and may not
even be aware of these proceedings, they are prejudiced
in absentia by the fact of being named in an action
of which they have no notice.
the last factor, the “less-drastic” sanction of
dismissal without prejudice is available, and the undersigned
finds it appropriate here. Dismissal without prejudice
balances the Court's interest in “sound judicial
case and docket management” with “the public
policy interest in the disposition of cases on their
merits.” Muncy, 110 Fed.Appx. at 557 n.5;
Mulbah, 261 F.3d at 591. It is particularly
appropriate in cases of prolonged inactivity and where, as
here, the plaintiff appears pro se. Id. This
Court's Local Rules strike the same balance, providing
that “[a] civil action that has been on the docket for
six (6) months without any responsive pleading or other court
proceedings taken therein shall be dismissed as a matter of
course, but the dismissal shall be without prejudice to
refile or to move the Court to set aside the order of
dismissal for just cause.” M.D. Tenn. Rule 41.01
(dismissal of inactive cases). Taking all of these factors
into account, the undersigned finds that dismissal without
prejudice best addresses the interests of this litigation.
light of the lack of any activity in this case since
September 2016, the undersigned RECOMMENDS that it be
DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule 41(b)
and Local Rule 41.01.
party has fourteen (14) days after being served with this
Report and Recommendation in which to file any written
objections to it with the District Court. Any party opposing
said objections shall have fourteen (14) days after being
served with a copy thereof in which to file any responses to
said objections. Fed.R.Civ.P. 72(b)(2). Failure to file
specific objections within fourteen (14) days of receipt of
this Report and Recommendation can constitute a waiver of
further appeal of the matters disposed of therein. Thomas
v. Arn, 474 U.S. 140, 155 (1985); Cowherd v.
Million, 380 F.3d 909, 912 (6th Cir. 2004).