United States District Court, S.D. Ohio, Western Division
M. Rose District Judge
REPORT AND RECOMMENDATIONS 
L. OVINGTON UNITED STATES MAGISTRATE JUDGE.
Abdou Samb brings this case against Defendants Cargill
Incorporated and United Steelworkers Union #1493, alleging
wrongful termination in violation of state and federal law
and illegal retaliation for engaging in protected activities.
Plaintiff alleges Defendants discriminated against him
because of his race. The case is presently before the Court
case began in January 2018, when Plaintiff filed his
Complaint. (Doc. #1). In December 2018, after a preliminarily
pretrial conference with the parties, United States District
Judge Thomas M. Rose issued a preliminary pretrial conference
order, referring this case to the undersigned and setting
forth the schedule. (Doc. #11). Shortly before the June 7,
2019 discovery cut-off date, Defendant Cargill's counsel,
Monica Lacks, requested an informal discovery conference
regarding Plaintiff's (alleged) failure to prosecute.
According to Ms. Lacks, Defendant Cargill provided Plaintiff
with notice of depositions and sent him amended written
discovery requests but did not receive any responses.
31, 2019, the undersigned held a teleconference with counsel
from all of the parties. Plaintiff's counsel, Adam
Webber, indicated that Plaintiff was out of the country.
Pursuant to the teleconference and in light of
Plaintiff's absence from the county, the undersigned
ordered Plaintiff to show cause, not later than June 21,
2019, why this case should not be dismissed for failure to
prosecute. (Doc. #12). Plaintiff was placed on notice that if
he did not respond to the Order, his case may be dismissed
for lack of prosecution. Id. (citing Fed.R.Civ.P.
41(b); Link v. Wabash R.R. Co., 370 U.S. 626,
630-31, 82 S.Ct. 1386, 1388-89 (1962)).
21, 2019, Plaintiff's counsel, Mr. Webber, filed a notice
regarding the Order to Show Cause. (Doc. #13). Mr. Webber
explained that in April 2019, Plaintiff Samb notified him
that he was traveling to Senegal to handle some family
matters. While in Senegal, Plaintiff said he would have
access to email and could receive text messages. Although Mr.
Webber attempted to contact Plaintiff Samb by telephone and
electronic communication, “he has not received any
communication from Mr. Samb since before May 30, 2019.”
courts have the inherent power to dismiss civil actions for
want of prosecution to “manage their own affairs so as
to achieve the orderly and expeditious disposition of
cases.” Link, 370 U.S. at 630-31, 82 S.Ct. at
1388-89; see also Carpenter v. City of Flint, 723
F.3d 700, 704 (6th Cir. 2013) (“It is well settled that
a district court has the authority to dismiss sua sponte a
lawsuit for failure to prosecute.”) (citations
omitted); Carter v. City of Memphis, 636 F.2d 159,
161 (6th Cir. 1980) (“It is clear that the district
court does have the power under Rule 41(b), Fed.R.Civ.P., to
enter a sua sponte order of dismissal.”) (citation
omitted). But, dismissal with prejudice for failure to
prosecute is “‘a harsh sanction which the court
should only order in extreme situations showing a clear
record of contumacious conduct by the plaintiff.'”
Carpenter, 723 F.3d at 704 (quoting Tung-Hsiung
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir.
2005)). By comparison, “the sanction of dismissal
without prejudice is a comparatively lenient
sanction, and thus the controlling standards should be
greatly relaxed … because the dismissed party is
ultimately not irrevocably deprived of his day in
court.” Muncy v. G.C.R., Inc., 110 Fed.Appx.
552, 556 (6th Cir. 2004) (citing Nwokocha v. Perry,
3 Fed.Appx. 319, 321 (6th Cir. 2001) (per curiam)).
determine whether dismissal for failure to prosecute is
appropriate, courts consider four 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 of the action.
Carpenter, 723 F.3d at 704 (quoting Mulbah v.
Detroit Bd. of Educ., 261 F.3d 586, 589 (6th Cir. 2001)
(quotation marks omitted)).
present case, Plaintiff is at fault. He failed to complete
discovery because he left the country and his attorney is no
longer able to communicate with him. Turning to the second
factor, Defendants suffered some prejudice as they have spent
time and money on attempts to complete discovery. As for the
third factor, this Court, in the Order to Show Cause, warned
Plaintiff that his failure to prosecute may result in
dismissal of the case. Finally, although less drastic
sanctions have not been imposed, any sanctions would have
little effect on Plaintiff because it is unlikely he would be
aware of such sanctions. Taken together, these factors
support the less-drastic sanction of dismiss without
prejudice in this case.
IS THEREFORE RECOMMENDED THAT:
1. Plaintiff's Complaint be dismissed without ...