United States District Court, W.D. Tennessee, Eastern Division
ORDER OF DISMISSAL WITHOUT PREJUDICE
DANIEL BREEN, UNITED STATES DISTRICT JUDGE.
action was initially brought on October 26, 2018, in the
Circuit Court for Obion County, Tennessee, by the Plaintiff,
William Shane Sanford, against the Defendant, Ford Motor
Company (“Ford”), and removed to this Court on
January 28, 2019. (Docket Entry (“D.E.”) 1.) On
April 25, 2019, the Defendant moved for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. (D.E. 18.) After Plaintiff failed to respond
to the pending motion, the Court entered an order, on June 7,
2019, directing him to show cause, within eleven days, why
the case should not be dismissed for failure to
prosecute. (D.E. 19.) In the order, the Court warned
that “[f]ailure to timely respond to this order will
result in dismissal.” (Id. at PageID 75.) Ford
timely responded to the show cause order, requesting
dismissal of the complaint for failure to prosecute. (D.E.
20.) Sanford filed no response to the show cause directive,
and the time for doing so has expired.
Civ. P. 41(b) provides for dismissal of actions for failure
of the plaintiff "to prosecute or to comply with [the
Federal Rules of Civil Procedure] or a court order . .
." Fed.R.Civ.P. 41(b). “This measure is available
to the district court as a tool to effect management of its
docket and avoidance of unnecessary burdens on the
tax-supported courts and opposing parties.” Schafer
v. City of Defiance Police Dep't, 529 F.3d 731, 736
(6th Cir. 2008) (quoting Knoll v. Am. Tel. & Tel.
Co., 176 F.3d 359, 363 (6th Cir. 1999)).
Sixth Circuit has articulated four factors to be addressed by
the Court in assessing whether dismissal for failure to
prosecute is warranted:
(1) whether the party's failure 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 less drastic sanctions
were imposed or considered before dismissal of the action.
Hall v. City of Williamsburg, ___ Fed.Appx. ___,
2019 WL 1470951, at *11 (6th Cir. Apr. 1, 2019) (citing
Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 589
(6th Cir. 2001)). These factors are “merely guideposts
or points of departure, ” Muncy v. G.C.R.,
Inc., 110 Fed.Appx. 552, 555 (6th Cir. 2004), and no one
factor is “outcome dispositive, ” Hall,
2019 WL 1470951, at *11 (quoting Schafer, 529 F.3d
factors support dismissal in this case. As noted above, the
Plaintiff failed to respond to the Court's June 7, 2019,
show cause order. There is nothing to suggest this failure
was due to anything but Plaintiff's willfulness or fault.
See Strunk v. Liberty Ins. Co., No. 5:18-cv-288-JMH,
2019 WL 2178620, at *2 (E.D. Ky. May 20, 2019)
(plaintiff's failure to comply with court's show
cause order weighed in favor of dismissal under first
factor); Sims v. McCarter, No. 3:18-cv-00072, 2019
WL 2088832, at *3 (M.D. Tenn. May 13, 2019) (failure to
respond to a show cause order “reflect[s]
‘willfulness and fault' for purposes of Rule
41(b)”), report & recommendation adopted,
2019 WL 2355108 (M.D. Tenn. June 4, 2019).
is present where the adversary was “required to waste
time, money, and effort in pursuit of cooperation which [the
errant party] was legally obligated to provide.”
Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th
Cir. 1997). Here, the Defendant's counsel has expended
some time, money, and effort in seeking dismissal of this
matter based on Plaintiff's failure to prosecute.
Moreover, the necessity of monitoring a case that a plaintiff
apparently has no desire to pursue affects the Court's
ability to manage its docket. See Link v. Wabash R.R.
Co., 370 U.S. 626, 629-30 (1962) (“The power to
invoke [the] sanction [of dismissal] is necessary in order to
prevent undue delays in the disposition of pending cases and
to avoid congestion in the calendars of the District
addition, Sanford was admonished in no uncertain terms in the
Court's show cause order that failure to respond thereto
would result in dismissal of his complaint. See Ferrell
v. Swing, No. 4:17-cv-00056, 2019 WL 2195235, at *2
(E.D. Tenn. May 21, 2019) (third factor weighed in favor of
dismissal where plaintiff failed to comply with court's
orders despite express warning of the possible consequences
of such a failure); Sims, 2019 WL 2088832, at *4
(warning contained in show cause order that party's
failure to respond could lead to a recommendation of
dismissal satisfied the prior warning factor).
lesser sanctions have been determined to be futile where the
plaintiff has failed to comply with court orders without
explanation, the defendant has spent resources defending an
action that appears to have been abandoned, and there does
not appear to be an alternative method of preserving the
integrity of the judicial process. See Lanzon v. Cty. of
Livingston, No. 18- 12737, 2019 WL 2383471, at *2 (E.D.
Mich. May 7, 2019), report & recommendation
adopted, 2019 WL 2369280 (E.D. Mich. June 5, 2019);
Cruse v. Montrose, Civil Action 2:18-cv-1542, 2019
WL 162621, at *1 (S.D. Ohio Jan. 10, 2019), report &
recommendation adopted, 2019 WL 2233323 (S.D. Ohio May
23, 2019); see also Hall, 2019 WL 1470951, at *12
(“the district court had discretion to dismiss the case
and was not required to impose a penalty short of
dismissal”). Nonetheless, the Court recognizes that
dismissal with prejudice is an extraordinary sanction.
Bradley J. Delp Revocable Trust v. MSJMR 2008 Irrevocable
Trust, 665 Fed.Appx. 514, 521 (6th Cir. 2016);
Robinson v. Samijlenko, No. 1:CV00263, 2018 WL
3619372, at *4 (N.D. Ohio July 30, 2018). The Court also
notes that Sanford is represented by counsel and the
shortcomings enumerated herein appear to be directly
attributable to his attorney. Thus, the Court finds that the
lesser sanction of dismissal without prejudice is
appropriate. See Hutchinson v. Sterling Mgmt. Ltd.,
No. 15-11158, 2016 WL 4771398, at *3 (E.D. Mich. June 29,
2016) (where factors supported dismissal under Rule 41(b) but
failures were the fault of counsel, dismissal without
prejudice was warranted), report & recommendation
adopted, 2016 WL 4761947 (E.D. Mich. Sept. 13, 2016).
on the foregoing, this action is DISMISSED without prejudice.