United States District Court, N.D. Ohio, Western Division
Monica L. Hiegel, Plaintiff
Kelly Services, Inc., et al., Defendants
Jeffrey J. Helmick United States District Judge.
matter is before me on the Defendants' unopposed motion
to dismiss for failure to prosecute. (Doc. No. 21). For the
reasons stated below, the motion is denied.
Monica L. Hiegel, through counsel, initiated this lawsuit in
the Putnam County Court of Common Pleas in October 2016.
Defendants filed a timely removal of the action to this
court. A Case Management Conference was conducted in January
2017, and established deadlines for discovery and amending
pleadings. (Doc. No. 14). At a June 2, 2017 telephonic status
conference, the discovery deadline was extended to August 31,
2017. (Doc. No. 16).
26, 2017, Plaintiff's counsel moved to withdraw. (Doc.
No. 17). In my order of July 11, 2017, the Plaintiff was
given 45 days to secure new counsel or advise the Court she
had chosen to represent herself. (Doc. No. 18). Additionally,
her counsel was directed to serve a copy of the Order on
Plaintiff, and certification of that action was filed with
the Court on July 19, 2017. (Doc. No. 19). On August 18,
2017, I granted counsel's motion to withdraw and a copy
of that Order was mailed to Plaintiff at her last known
address. (Doc. No. 20).
November 1, 2017, Defendants filed the motion to dismiss
which they certify was mailed to Plaintiff's address in
Fed.R.Civ.P. 41(b), “If the plaintiff fails to
prosecute or comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against
it.” A dismissal for failure to prosecute is generally
viewed as a drastic remedy and must be carefully contemplated
as against a pro se plaintiff. See 8 Moore's
Federal Practice, § 41.50 (3d ed. 2017). A dismissal
under Rule 41(b) is within the trial court's discretion.
four factors considered under a Rule 41(b) dismissal were
recently addressed by the Sixth Circuit as follows:
(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 was ordered.
Evans v. Liberty Insurance Corporation, 702
Fed.Appx. 297, 299 (6th Cir. 2017), citing
Shafer v. City of Defiance Police
Dep't., 529 F.3d 731, 737 (6th Cir.
2008). No one factor is dispositive and dismissal is
appropriate upon a “clear record of delay or
contumacious conduct.” Id. citing Knoll v.
Am. Tel & Tel. Co., 176 F.3d 359, 363
(6th Cir. 1999).
instance, the pro se Plaintiff was represented by
counsel until August 2017. The Defendants detail spotty
responses to their discovery requests beginning in April
2017. After Plaintiff's counsel withdrew, Plaintiff
failed to respond to any requests previously made to her
counsel or respond to a letter from defense counsel on
supplementing discovery requests.
Defendants argue the Plaintiff's conduct amounts to
willful inaction, the cases they rely upon involved parties
who were represented by counsel or, if they were pro
se, engaged in protracted and purposeful delay of their
the pro se Plaintiff has been on notice of the
Defendants' requests for supplemental discovery since her
counsel withdrew and was presumably aware the discovery
deadline was August 31, 2017. This is not a significantly
long time nor did the Defendants avail themselves of Local
Rule 37.1 in seeking court intervention to address
their discovery requests. In the absence of an order
directing a party to act, a court ...