United States District Court, M.D. Tennessee, Nashville Division
Crenshaw, Chief Judge
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY, U.S. MAGISTRATE JUDGE
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.
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.
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.”).
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
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.
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.
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).
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.
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 ...