United States District Court, S.D. Ohio, Eastern Division
DEWAYNE M. JENNINGS, et al., Plaintiffs,
DWAYNE A. BODRICK, et al., Defendants.
Algenon L. Marbley Judge.
REPORT AND RECOMMENDATION
CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.
matter is before the United States Magistrate Judge for a
Report and Recommendation on the Court's July 5, 2018
Show Cause Order (ECF No. 110), in which the Court directed
Plaintiffs to show cause for their failure to respond to the
Court's May 3, 2018 Order (ECF No. 104), and May 29, 2018
Show Cause Order (ECF No. 105; see also ECF No.
108). For the reasons that follow, it is
RECOMMENDED that Plaintiffs' action be
DISMISSED WITH PREJUDICE pursuant to Federal
Rule of Civil Procedure 41(b) for failure to prosecute.
filed this action on March 17, 2009. (ECF No. 1.) On October
20, 2016, the case was stayed pending resolution of a related
adversary proceeding in the United States Bankruptcy Court
for the Southern District of Ohio (No. 14-ap-2333 (Bankr.
S.D. Ohio, Dec. 12, 2014)). (Oct. 20, 2018 Order, ECF No.
102.) No. further action took place in this matter until the
Court issued its May 3, 2018 Order directing the parties to
file a written report detailing that status of the case by
May 17, 2018. (May 3, 2018 Order, ECF No. 104.) Because the
parties failed to file a written report by the May 17, 2018
deadline, the Court issued a Show Cause Order directing the
parties to show cause by June 12, 2018 for their failure to
comply with the Court's May 3 Order. (May 29, 2018 Show
Cause Order, ECF No. 105.)
14, 2018, Plaintiff DeWayne Jennings filed a Motion for
Extension of Time (ECF No. 107), seeking an additional 14
days in which to respond to the May 29 Show Cause Order. In
his Motion, Mr. Jennings's counsel represented that he
had not spoken with Mr. Jennings since September 2017 and
that Mr. Jennings requested the additional time so that he
could “seek legal advice on how to proceed with this
matter.” (Id. at 1.) Based on Mr.
Jennings's representation, the Court granted his request,
extending the time by which he was required to respond to the
May 29 Show Cause Order to June 29, 2018. (June 15, 2018
Order, ECF No. 108.)
the parties failed to comply with the May 29 Show Cause
Order, the Court issued a second Show Cause Order on July 5,
2018. (July 5, 2018 Show Cause Order, ECF No. 110.) In the
July 5 Show Cause Order, the Court ordered Plaintiffs to show
cause by July 19, 2018, for their failure to comply with this
Court's previous orders. Plaintiffs were also cautioned
that failure to comply with the Court's Order would
result in dismissal of this case for failure to prosecute. To
date, Plaintiffs have failed to comply with the Court's
July 5 Show Cause Order, and no further action has taken
place in this matter.
the circumstances presented in the instant case, the
undersigned recommends dismissal of Plaintiff's action
pursuant to Rule 41(b). The Court's inherent authority to
dismiss a plaintiff's action with prejudice because of
his failure to prosecute is expressly recognized in Rule
41(b), which provides in pertinent part: “If 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. Unless the dismissal order states
otherwise, a dismissal under this subdivision (b) . . .
operates as an adjudication on the merits.”
Fed.R.Civ.P. 41(b); Link v. Walbash R.R. Co., 370
U.S. 626, 629-31 (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, 363 (6th Cir.
1999) (internal citations omitted).
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 contumacious conduct.'”
Schafer, 529 F.3d at 737 (quoting Knoll,
176 F.3d at 363).
the parties have failed to comply with clear orders of the
Court (1) directing them to file written a written report
detailing the status of this case and (2) directing them to
show cause for their failure to comply with this Court's
Order or otherwise prosecute this case. Moreover, the Court
explicitly cautioned Plaintiffs in its July 5 Show Cause
Order that failure to comply would result in dismissal of
this action pursuant to Rule 41(b) for failure to prosecute.
See Stough v. Mayville Cmty. Schs., 138 F.3d 612,
615 (6th Cir. 1998) (noting that “[p]rior notice, or
the lack thereof, is . . . a key consideration” in
whether dismissal under rule 41(b) is appropriate).
Plaintiffs' failure to timely comply with the clear
orders of the Court, which established reasonable deadlines
for compliance, constitutes bad faith or contumacious
conduct. See ...