United States District Court, M.D. Tennessee, Nashville Division
Honorable Judith E. Levy, District Judge
REPORT AND RECOMMENDATION
ALISTAIR E. NEWBERN United States Magistrate Judge.
January 27, 2017, three days after filing this employment
discrimination action pro se, Plaintiff Regina Williams filed
a motion to refund the filing fee, stating that she had
received advice that she should have pursued administrative
remedies with the EEOC before filing in federal court. (Doc.
No. 5.) The Court denied that motion on February 13, 2017,
and informed Williams that she could move to voluntarily
dismiss the case under Federal Rule of Civil Procedure 41 if
she no longer wanted to pursue her claims. (Doc. No. 9.)
Williams did not take any further action.
October 23, 2017, the undersigned issued an order for
Williams to show cause within thirty days of the order's
date why her case should not be dismissed for inactivity
pursuant to Local Rule 41.01. (Doc. No. 14.) The Court Local
Rule 41.01 provides 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). The order notified
Williams that “any failure to respond may result in the
recommendation that this action be dismissed.” (Doc.
docket reflects that the Court's attempt to serve
Williams with the show cause order was unsuccessful; the
mailing was returned with the notation “Box Closed,
Unable to Forward.” (Doc. No. 15.) The Court had
successfully served Williams with prior orders at the same
post office box. (Doc. Nos 8, 12.) Williams has not notified
the Court of any change of address.
addition to this Court's Local Rule, the Federal Rules of
Civil Procedure also provide recourse when a plaintiff
abandons an action. Federal 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 F. App'x 552, 556 n.4 (6th Cir. 2004).
Williams's failure to take any action after
unsuccessfully attempting to recoup her filing fee despite
being warned of the consequences of failing to act warrants
dismissal of this action under Rule 41(b) and the
Mulbah factors. The fault plainly lies with Williams
for the lack of any progress in this action, and Amsurg has
suffered some degree of prejudice from the long period of
inaction. The Court has attempted to notify Williams of the
likelihood that her case would be dismissed if she did not
take any action. The fact that Williams has not receive that
notice appears to be due to her failure to keep the Court
apprised of her current mailing address. As for the last
factor, the “less-drastic” sanction of dismissal
without prejudice is available and is appropriate here.
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 F. App'x at
557 n.5; Mulbah, 261 F.3d at 591. The same balance
is struck by Local Rule 41.01. Dismissal without prejudice is
also particularly appropriate where, as here, the plaintiffs
“failure to respond may be due to [her] failure to
provide the Court with an updated address.” Black
v. Bouchard, No. 14-CV-13581, 2015 WL 1646596, *1 (E.D.
Mich. Apr. 14, 2015). Taking these factors as a whole, the
undersigned finds that dismissal without prejudice will best
address the interests of all parties and the Court.
light of the lack of activity in this case since early 2017,
the undersigned RECOMMENDS that it be DISMISSED WITHOUT
PREJUDICE pursuant ...