Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Miller v. Franklin County Children Services

United States District Court, S.D. Ohio, Eastern Division

April 25, 2018

PAMELA MILLER, Plaintiff,
v.
FRANKLIN COUNTY CHILDREN'S SERVICES, et al., Defendants.

          George C. Smith Chief Judge

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court for consideration of Plaintiff's failure to respond to the April 5, 2018, Show Cause Order. (ECF No. 34.) For the reasons that follow, it is RECOMMENDED that the Court DISMISS Plaintiff's action WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute.

         I.

         Plaintiff initiated this action on January 20, 2015. (ECF No. 1.) Because related criminal proceedings were pending in both California and Ohio courts, the Court determined that it was appropriate to refrain from considering this case pursuant to the abstention doctrine announced in Younger v. Harris, 401 U.S. 37 (1971). (ECF No. 18.) Accordingly, on January 22, 2016, the Court stayed this matter pending resolution of the state court proceedings and instructed the parties to file a notice with the Court when they were finally resolved. (Id.)

         Ten months later, the Court issued an Order requiring the parties to submit a status report by November 1, 2016. (ECF Nos. 19.) Plaintiff failed to comply. The Court subsequently ordered Plaintiff to file a status report by November 10, 2016. (ECF No. 21.) Plaintiff then submitted a status report indicating that although she believed the California case had been disposed of, she could not confirm that fact because the case was purportedly sealed. (ECF No. 22.)

         On February 8, 2017, the Court ordered the parties to file a second status report by February 28, 2017. (ECF No. 23.) Plaintiff failed to comply. On March 1, 2017, the Court ordered the parties to file a third status report by September 1, 2017. (ECF No. 25.) Plaintiff failed to comply. On September 29, 2017, the Court ordered Plaintiff to file a status report by October 16, 2017, and directed Plaintiff to indicate in that report if this case could be settled or dismissed. (ECF No. 27.) Plaintiff then submitted a status report indicating that the state court proceedings remained unchanged and that she had been unsuccessful in her attempts at settlement negotiations with the Defendants. (ECF No. 28.)

         On November 20, 2017, the Court ordered the parties to file a fourth status report by February 23, 2018. (ECF No. 30.) Two days after that deadline expired, Plaintiff filed a status report indicating that there had been no changes since her last report and that a plea agreement offered to her in the Ohio criminal case was unacceptable. (ECF No. 31.) On February 27, 2018, the Court issued a Notice scheduling a conference to take place by phone at 2:30pm on April 5, 2018. (ECF No. 32.) Defendants' counsel appeared at the designated time and was prepared to participate. Plaintiff's counsel, however, did not contact the Court at the designated time, or any time thereafter to explain why Plaintiff's counsel failed to appear. Accordingly, the Undersigned issued an Order directing Plaintiff to show cause why the Court should not dismiss this action by April 19, 2018. (ECF No. 34.) Plaintiff was “specifically advised that the Court could dismiss this case if she fail[ed] to respond to [the] Show Cause Order.” (Id.) To date, however, Plaintiff has not responded to that Show Cause Order.

         II.

         Under the circumstances presented in the instant case, the Undersigned recommends that this action be dismissed without prejudice pursuant to Rule 41(b). The Court's inherent authority to dismiss a plaintiff's action because of his or her failure to prosecute is expressly recognized in Rule 41(b), which authorizes involuntary dismissal for failure to prosecute or to comply with rules of procedure or court orders. See Fed. R. Civ. P. 41(b); Chambers v. Nasco, Inc., 501 U.S. 32, 49 (1991) (noting that “a federal district court has the inherent power to dismiss a case sua sponte for failure to prosecute” as recognized in Link v. Walbash R. Co., 370 U.S. 626, 629-32 (1962)). “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.” Knoll v. AT & T, 176 F.3d 359, 63 (6th Cir. 1999).

         The Sixth Circuit directs the district courts to consider the following four factors in deciding whether to dismiss an action for failure to prosecute under Rule 41(b):

(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.

Schafer v. City of Defiance Police Dep't, 529 F.3d 731, 737 (6th Cir. 2008) (citing Knoll, 176 F.3d at 363). “‘Although typically none of the factors is outcome dispositive, . . . a case is properly dismissed by the district court where there is a clear record of delay or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.