United States District Court, M.D. Tennessee, Nashville Division
FRENSLEY MAGISTRATE JUDGE
WILLIAM L. CAMPBELL, JR., UNITED STATES DISTRICT JUDGE
before the Court is the magistrate judge's Report and
Recommendation (Doc. No. 76), recommending that the Court
grant Defendants' Motion to Dismiss for Failure to
Prosecute and Failure to Comply with Court's Orders (Doc.
No. 65). In the report and recommendation, the magistrate
judge recounted the lengthy record surrounding
Plaintiff's filing an amended complaint. After several
extensions of time, on April 11, 2019, the magistrate judge
issued an Order allowing Plaintiff an additional 30 days to
file his Amended Complaint. The Amended Complaint was not
filed with the Court during the allotted time, and on June 3,
2019, the magistrate judge issued the instant report and
recommendation recommending that the case be dismissed.
Plaintiff thereafter filed an Amended Complaint (Doc. No. 77,
postmarked June 7, 2019) and objections to the report and
recommendation (Doc. No. 78, postmarked June 13, 2019). Both
filings were received by the Court within the fourteen days
of the report and recommendation. Plaintiff provided evidence
that he did, in fact, mail his Amended Complaint within the
deadline directed by the Court, but the mail was returned to
him. (Doc. Nos. 77, 78-1 (showing postmark of April 24, 2019,
and mail returned as undeliverable on May 27, 2019)).
18, 2019, Defendants filed a Motion to Strike Amended
Complaint (Doc. No. 79) on grounds that it was not timely
district court reviews de novo any portion of a
report and recommendation to which a specific objection is
made. Fed.R.Civ.P. 72(b)(1)(C); Local Rule 72.02; 28 U.S.C.
§ 636(b)(1)(C); United States v. Curtis, 237
F.3d 598, 603 (6th Cir. 2001). General or conclusory
objections are insufficient. See Zimmerman v. Cason,
354 Fed.Appx. 228, 230 (6th Cir. 2009). Thus, “only
those specific objections to the magistrate's report made
to the district court will be preserved for appellate
review.” Id. (quoting Smith v. Detroit
Fed'n of Teachers, 829 F.2d 1370, 1373 (6th Cir.
1987)). In conducting the review, the court “may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).
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.” 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 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). The Court
of Appeals for the Sixth Circuit has noted 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 continuous conduct by the
plaintiff.” Carter v. City of Memphis, 636
F.2d 159, 162 (6th Cir. 1980).
finding of fault in the context of failure to timely file
pleadings requires “evidence that the plaintiff
intended to ‘thwart' the judicial proceedings or
had a ‘reckless disregard' for the effect his
conduct would have on the case.” Schafer, 529
F.3d at 739 (citing Wu v. T. W. Wang, 420 F.3d 641,
643 (6th Cir. 2005)). In light of evidence showing Plaintiffs
attempt to file an Amended Complaint within the deadline
ordered by the magistrate judge, the Court finds a lack of
willfulness or bad faith on the part of the Plaintiff.
Accordingly, dismissal for failure to prosecute or failure to
comply with a court order is not warranted at this time.
this reason, the Plaintiffs objections are
SUSTAINED and the Report and Recommendation
(“R&R”) is REJECTED.
Defendants' Motion to Strike Amended Complaint (Doc. No.
79) is DENIED. Plaintiffs Amended Complaint
(Doc. No. 77) shall be the operative complaint in this case.
Plaintiff is cautioned to be attentive to the filing
deadlines and shall address court filings as follows to
insure they are properly delivered by the postal service and
docketed by the Court:
U.S. District Court
801 Broadway, Room 800
Nashville, TN 37203