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Madondo v. Edwards

United States District Court, M.D. Tennessee, Nashville Division

July 23, 2019

ANGELINE SHORAYI MADONDO Plaintiff,
v.
POLICE OFFICER R. EDWARDS Badge #1004 Defendant.

          Crenshaw, Chief Judge

          REPORT AND RECOMMENDATION

          JEFFERY S. FRENSLEY, U.S. MAGISTRATE JUDGE

         Pending before the Court is Defendant's Second Motion to Dismiss for Lack of Prosecution and Failure to Comply with Court Order. Docket No. 27. The pro se Plaintiff has failed to respond to the Motion. For the reasons stated herein, the undersigned recommends that the Defendant's Second Motion to Dismiss for Lack of Prosecution and Failure to Comply with Court Order (Docket No. 27) be GRANTED.

         The Plaintiff filed this pro se Complaint (Docket No. 1) against the Smyrna Police Department and Officer R. Edwards alleging violations of her constitutional rights during an arrest for driving under the influence on January 3, 2018. The Court conducted an initial review of the complaint granting Plaintiff's application to proceed without prepaying fees or costs; dismissing her claim against the Smyrna Police Department; and directing process to issue for Officer R. Edwards of the Smyrna Police Department. Docket No. 5. The action was referred to the undersigned to enter a scheduling order and for management of the case, to dispose or recommend disposition of any pretrial motions and conduct further proceedings as necessary. Id.

         Following the entry of a scheduling order, discovery commenced and on November 18, 2018, Defendant filed a motion to compel the Plaintiff to answer certain interrogatories and requests for production of documents. Docket No. 17. The Motion indicated that in spite of acknowledging receipt of written discovery, Plaintiff failed to fully comply with the Federal Rules of Civil Procedure by providing only partial responses approximately three weeks overdue and not sworn to under oath. Id. Plaintiff thereafter failed to respond to any request from Defendant's counsel to supplement discovery responses in a manner required by the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). Id.

         Plaintiff did not respond to the Defendant's Motion to Compel and the Court granted the Motion. Docket No. 18. Plaintiff was directed to fully respond to each of the Defendant's written discovery requests as required by the Federal Rules of Civil Procedure and the Court's scheduling order. Id. Specifically, the Court included the following language:

Plaintiff is forewarned that failure to comply with the Rules of Civil Procedure and this Court's Orders may result in sanctions up to and including dismissal of her action. Plaintiff shall respond to Defendants' discovery requests on or before December 21, 2018.

Id.

         On January 7, 2019, the Defendant filed a motion to dismiss for lack of prosecution and failure to comply with court order. Docket No. 20. In that motion they alleged that the Plaintiff was “uncooperative throughout the discovery process and unwilling to advance this case.” Docket No. 20. They further asserted that the Plaintiff failed to respond to Defendant's discovery requests on or before the December 21, 2018 deadline required by the Court's Order. Id. They thereafter asked that the Court dismiss this action for failure to prosecute under Fed.R.Civ.P. 41(b). Id.

         The undersigned filed a Report and Recommendation concluding that the Court should grant Defendant's Motion to Dismiss for Lack of Prosecution and Failure to Comply with Court Order. Docket No. 23. After the Report and Recommendation was filed, Plaintiff filed a “Motion to Deny Dismissal of This Court's Order and Request More Time to Acquire or Seek New Counsel.” Docket No. 24. In that motion, Plaintiff asserted that she had cooperated with discovery, indicated that she would respond to Defendant's discovery “in due course” and sought more time to obtain counsel. Id. In light of Plaintiff's motion, the Court set aside the Report and Recommendation and granted Plaintiff 40 days from the date of the order to retain counsel and fully respond to the discovery requests. Docket No. 26. The Court further admonished Plaintiff that “failure to comply may result in sanctions up to and including dismissal of this action.” Docket No. 26. (emphasis added in original).

         The Defendant has now filed the instant Second Motion to Dismiss for Lack of Prosecution and Failure to Comply with Court Order after more than 40 days has passed since the entry of the Court's order. Docket No. 27. Defendant indicates that as of the filing of the motion on June 26, 2019, Defendant has made repeated attempts to communicate by email and U.S. mail with the Plaintiff which have gone unanswered. No attorney has entered an appearance on behalf of Plaintiff nor has she made defense counsel aware if she has retained counsel and importantly; Plaintiff has still not responded to the Defendant's First Set of Interrogatories and Request for Production of Documents which were sent on August 3, 2018. Id. Defendant argues that dismissal is appropriate in light of Plaintiff's failure to respond to discovery requests issued more than 10 months ago and the Court's repeated orders directing her to respond and advising her of the consequences of failing to do so. Id.

         ANALYSIS

         Fed. R. 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 dismissal”).

         The 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 ...


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