United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY, U.S. MAGISTRATE JUDGE
before the Court is the Defendants' Motion to Dismiss.
Docket No. 18. Specifically, the Defendants move to dismiss
the action for failure to prosecute and for failure to comply
with the Court's Order of May 15, 2019 (Docket No. 17)
granting the Motion to Withdraw filed by Plaintiff's
former counsel and ordering Plaintiff to “secure new
counsel and have them enter an appearance or notify the Court
he intends to proceed pro se” within the time
allotted. For the reasons stated herein, the undersigned
recommends that the Defendants' Motion be DENIED without
a premises liability case filed on August 3, 2018 in state
court and removed to this Court on September 6, 2018. Docket
No. 1. The matter is set for trial on February 11, 2020.
Docket No. 14.
14, 2019, Plaintiff's counsel filed a Motion to Withdraw.
Docket No. 16. The Court granted the motion and gave
Plaintiff 30 days to secure new counsel or give notice of
intent to proceed pro se. Docket No. 17. Defendants have
filed the instant motion after Plaintiff has failed to obtain
new counsel or notify the court of his intention to proceed
pro se. Docket No. 18. Defendants advance two grounds in
support of their motion to dismiss for failure to prosecute.
First, they note that Plaintiff has not responded to written
discovery requests served by Defendants on August 20, 2018.
Id. Second, they contend that Plaintiff has
disregarded the Court's Order to have new counsel enter
an appearance or notify the Court of his intention to proceed
pro se. Id. These reasons, they argue the action
should result in dismissal. Id.
Civ. P. 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.” Additionally, the courts have the power,
“acting on their own initiative, to clear their
calendars of cases that have remained dormant because of the
inaction or dilatoriness of the parties seeking
relief.” Link v. Wabash R.R. Co., 370 U.S.
626, 630, 82 S.Ct.; see also Carter v. City of
Memphis, 636 F.2d 159, 161 (6th Cir. 1980), citing
Link, 370 U.S. at 626 (“[i]t 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
Court considers four factors in determining whether dismissal
under Rule 41(b) is appropriate: (1) the willfulness, bad
faith, or fault of the plaintiff; (2) whether the opposing
party 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. Schafer
v. City of Defiance Police Dep't, 529 F.3d 731, 737
(6th Cir. 2008). A dismissal for failure to prosecute under
Rule 41(b) constitutes an adjudication on the merits unless
the dismissal order states otherwise. Fed.R.Civ.P. 41(b). The
Court of Appeals for the Sixth Circuit has noted, however,
that dismissal under Rule 41(b) is a “harsh
sanction” and 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,
quoting Silas v. Sears, Roebuck & Co., Inc., 586
F.2d 382, 385 (5th Cir. 1978).
the clear preference to resolve cases on the merits, the
undersigned does not believe that the remedy of dismissal is
appropriate at this time. Given that new counsel has not
filed an appearance on the behalf of the Plaintiff and the
action remains pending, the Court deems Plaintiff to be
proceeding pro se.
respect to Plaintiff's failure to respond to written
discovery requests, the undersigned believes that the
requested remedy of dismissal is too harsh. The undersigned
however construe Defendants' motion in the alternative as
a motion to compel Plaintiff to respond to the written
discovery request and as such grants that motion.
parties have a duty to participate in discovery and comply
with the Federal Rules of Civil Procedure and Local Rules of
this Court. This is true whether the party is proceeding with
counsel or pro se. Based upon Defendants'
representations, Plaintiff's responses to the written
discovery requests are long overdue. The Court orders the
Plaintiff to respond to the written discovery requests on or
before July 12, 2019. The Plaintiff is specifically advised
that his failure to cooperate in the discovery process and
provide complete responses to the outstanding discovery
requests in the time allowed herein, absent good cause, will
result in the undersigned recommending that Plaintiff's
claims be dismissed based upon failure to prosecute this
action and comply with the Court's Order.
for the foregoing reasons, the undersigned recommends that
the Defendants' Motion to Dismiss (Docket No. 18) be
DENIED without prejudice, that the Plaintiff be deemed to be
proceeding pro se and Plaintiff is ordered to respond to the
outstanding discovery requests on or before July 12., 2019.
Plaintiff is forewarned that his failure to cooperate in
discovery and the orders of this Court will result in a
recommendation that this action be dismissed.
Rule 72(b) of the Federal Rules of Civil Procedure, any party
has fourteen (14) days from receipt of this Report and
Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party
opposing said objections shall have fourteen (14) days from
receipt of any objections filed in this Report in which to
file any response to said objections. Failure to file
specific objections within fourteen (14) days of receipt of
this Report and Recommendation can constitute a waiver of