United States District Court, S.D. Ohio, Western Division
DECISION AND ENTRY OVERRULING DEFENDANT ANETSBERGER,
LLC'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE (DOC.
#7); FURTHER INSTRUCTIONS TO COUNSEL
H. RICE UNITED STATES DISTRICT JUDGE
matter is currently before the Court on Defendant
Anetsberger, LLC's Motion to Dismiss for Failure to
Prosecute, brought under Fed.R.Civ.P. 4Kb). Doc. #7. For the
reasons set forth by the Court during the conference call
held on June 11, 2018, and for the reasons discussed below,
the Court OVERRULES that motion.
Background and Procedural History
3, 2015, Plaintiff, Cincinnati Insurance Company,
("CIC" or "Plaintiff") filed this lawsuit
in state court against Anetsberger, LLC, Anets, Anetsberger
Brothers, Inc. and John Does. It alleged that a defective
commercial deep fat fryer manufactured by one or more of the
defendants caused a fire at McMurray's Varsity Club, a
restaurant that was insured by CIC. CIC paid McMurray's
claim for property damage, and lost business income, and now
asserts its subrogation rights against Defendants. Claims
include strict liability in tort, negligence, products
liability, supplier negligence, breach of express warranty,
and breach of implied warranty.
November of 2015, Defendant Anetsberger, LLC
("Defendant") removed the case to federal court,
and filed its Answer. For some unknown reason, on March 14,
2016, the Clerk of Courts terminated the case, noting that a
Stipulation of Dismissal was filed on February 23, 2016. In
fact, no such Stipulation had been filed. Although the
termination was clearly a mistake, none of the attorneys
contacted the Court to inquire about this docket entry.
years later, on April 13, 2018, Defendant filed a Motion to
Dismiss for Failure to Prosecute. Doc. #7. Counsel noted that
Plaintiff had done absolutely nothing to move the case
forward after it was removed to federal court. On May 1 7,
2017, Defendant's counsel advised Plaintiff that
Defendant planned to file a motion to dismiss for failure to
prosecute. Doc. #7-2, PagelD#62. On August 7, 2017,
Plaintiff's counsel informed Defendant's counsel that
he was under the mistaken impression that the case was stayed
due to a bankruptcy proceeding. They discussed the
possibility of filing a stipulation of dismissal without
prejudice, but Plaintiff refused to agree. Doc. #7-1,
PagelD#59. Plaintiff provided some photographs of the fire
and several witness statements. Id. Several more
months passed. When Plaintiff still failed to take action to
move the case forward, Defendant filed the pending motion,
asking the Court to dismiss the action with prejudice for
failure to prosecute.
filed a Memorandum in Opposition, Doc. #8, arguing that
dismissal with prejudice was too drastic of a sanction,
particularly in light of the fact that the Court had, for
some unknown reason, closed the case in March of 2016.
Plaintiff acknowledged Defendant's claim that it did not
manufacture the deep fryer that allegedly started the fire.
Plaintiff suggested that, if Defendant would simply produce
an affidavit or other evidence to verify that allegation,
Plaintiff would voluntarily dismiss all claims against
Defendant Anetsberger, LLC.
Defendant filed its Reply, Doc. #9, the Court held a
conference call on June 11, 2018, and overruled the pending
motion. The Court's reasoning is set forth in greater
Rule of Civil Procedure 4Kb) provides courts the authority to
dismiss a case for failure of the plaintiff to prosecute.
"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, 363 (6th Cir. 1999) (internal quotation omitted).
Nevertheless, "dismissal of a claim for failure to
prosecute is a harsh sanction which the court should order
only in extreme situations." Schafer v. City of
Defiance Police Dep't, 529 F.3d 731, 736 (6th Cir.
2008) (quoting Wu v, T.W. Wang, Inc., 420 F.3d 641,
643 (6th Cir. 2005)). Dismissal with prejudice is typically
not warranted where the failure to prosecute is "solely
the fault of the attorney." Carpenter v. City of
Flint, 723 F.3d 700, 704 (6th Cir. 2003) (quoting
Carter v. City of Memphis, 636 F.2d 159, 161 (6th
factors must be considered in deciding whether to dismiss a
case for failure to prosecute, although none is outcome
dispositive. Knoll, 1 76 F.3d at 363. The factors
(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.
Court noted during the June 11, 2018, conference call,
Plaintiff's failure to prosecute can be blamed, in large
part, on the Clerk of Court, who mysteriously terminated the
case on March 14, 2016. Notably, neit ...