United States District Court, S.D. Ohio, Eastern Division
Chelsey M. Vascura Magistrate Judge
OPINION AND ORDER
A. Sargus, Jr. Chief Judge
matter is before the Court for consideration of
Defendants' April 24, 2019 Motion to Dismiss the Claims
of Plaintiff Connor Lefevers for Failure to Prosecute (ECF
No. 47). The same day they filed their motion to withdraw,
Plaintiffs' former counsel also filed a Response in
Opposition to Defendants' Motion to Dismiss (ECF No. 54),
requesting that any such dismissal of Plaintiff Lefevers be
without prejudice. In support, Plaintiffs'
former counsel stated that Plaintiff Lefevers' ongoing
health issues have prevented him from prosecuting this case.
counsel failed to attach any affidavits, declarations, or
other evidentiary materials upon which the Court could rely
to conclude that Mr. Lefevers' health condition has
prevented him from prosecuting this case. Moreover,
documentation Defendants attach to their Motion to Dismiss
reflects that Mr. Lefevers has been working and attending
school during the pendency of this case. Accordingly, on May
23, 2019, the Court held Defendants' Motion to Dismiss
the Claims of Plaintiff Connor Lefevers for Failure to
Prosecute in abeyance for fourteen days to permit Mr.
Lefevers to supplement his Memorandum in Opposition (ECF No.
Lefevers has not filed any documentation to supplement his
Memorandum in Opposition, and his time to do so has now
expired. The Court will therefore proceed with consideration
of Defendants' Motion to Dismiss for failure to prosecute
(ECF No, 47).
the circumstances, the Court concludes dismissal of Plaintiff
s action with prejudice pursuant to Rule 41(b) is
appropriate. The Court's inherent authority to dismiss a
plaintiffs 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
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 Court held a conference with the parties on April 16,
2019, to discuss Mr. Lefevers' multiple failures to
appear for properly noticed depositions. (ECF No. 45.) Mr.
Lefevers was first scheduled to be deposed on August 17,
2018, but cancelled the deposition the day before due to
"an emergent medical issue." (Email from
Plaintiffs' Counsel, ECF No. 47-1, PAGEID #283.) Mr.
Lefevers again cancelled his rescheduled April 2, 2019
deposition the day before without explanation. (Id.
at PAGEID #290.) Noting that the discovery deadline had
already been extended twice, the Magistrate Judge Vascura
ordered Mr. Lefevers to appear for his deposition on either
April 23 or April 24, 2019, as those were the only dates all
counsel identified as available prior to the expiration of
discovery. (Order 2, ECF No. 45.) Judge Vascura cautioned
that "[s]hould Mr. Lefevers fail yet again to appear for
his deposition, Defendants may move to dismiss his claims for
failure to prosecute." (Id.)
the conference, Defendants' counsel noticed Mr.
Lefevers' deposition for April 24, 2019. On April 19,
2019, Plaintiffs' counsel informed Defendants'
counsel that Mr. Lefevers would not appear for his deposition
on April 24 "for the same ongoing reasons as in prior
instances." (Email from Plaintiffs' counsel, ECF No.
47-3.) Defendants thereafter moved to dismiss Mr.
Lefevers' claims for failure to prosecute. (ECF No. 47.)
counsel filed a memorandum in opposition, asserting that
"[o]ngoing health issues have in the past and continue
to prevent Mr. Lefevers from sitting for a deposition in this
case." (Resp. 1, ECF No. 54.) As a result, they asked
that any dismissal of Mr. Lefevers' claims be without
prejudice. (Id. at 2-4.) However, Defendants point
out that Plaintiffs' counsel previously requested
accommodation of Mr. Lefevers' work and school schedule
when noticing depositions. (Email from Plaintiffs'
counsel, ECF No. 47-1, PAGEID #287-88.) If Mr. Lefevers'
health issues have not prevented his attendance at work and
school, it seems unlikely they would prevent him from sitting
for his deposition. Neither Plaintiffs' counsel nor Mr.
Lefevers himself have submitted any evidence of health issues
that would have prevented his cooperation in being deposed
despite direction from the Court to do so.
failed to appear for his deposition as ordered by the Court
and having failed to provide any substantive explanation for
his failure to appear at any of his three properly-noticed
depositions, despite caution from the Court that his claims
were at risk of dismissal, the Court concludes that no
alternative sanction would protect the integrity of the
pretrial process. Defendants' Motion to Dismiss the
Claims of Plaintiff Connor Lefevers for Failure to Prosecute
(ECF No. 47) is therefore GRANTED, and ...