United States District Court, S.D. Ohio, Eastern Division
L. Graham Judge
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
February 19, 2019, this Court issued a scheduling order in
this case, requiring Plaintiff to file a statement of errors
within forty-five (45) days of the date of service of the
administrative record. (Doc. 2). Defendant filed the
administrative record on April 29, 2019 (Doc. 7). The time
for Plaintiff to file his Statement of Errors passed, and on
June 21, 2019, the Court issued a Show Cause Order directing
him to show cause within 14 days why this case should not be
dismissed for want of prosecution. Plaintiff has not filed
any response to the Court's Show Cause Order, and the
time to do so has passed.
Court may dismiss an action for failure to prosecute under
its inherent power to control its docket, see Link v.
Wabash R.R. Co., 370 U.S. 626, 629 (1962), or under Rule
41(b) of the Federal Rules of Civil Procedure. Rule 41(b)
provides, in pertinent part that “[i]f the plaintiff
fails to prosecute or 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.” The measure
is available to the 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.
Sixth Circuit directs the district court 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 Dept., 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 filing of his Complaint in February 2019, Plaintiff has
not taken any steps to prosecute this action. This is true
despite the Court's Show Cause Order explicitly warning
him of the risk of dismissal for want of prosecution.
(See Doc. 9). In view of the foregoing, the
Undersigned concludes that Plaintiff has abandoned this
action. Although this Court has a “favored practice of
reaching a disposition on the merits, ” the Court's
“need to manage its docket, the interest in expeditious
resolution of litigation, and the risk of prejudice to the
defendant” outweigh allowing this case to linger.
Little v. Yeutter, 984 F.2d 160, 162 (6th Cir.
1993). Finally, the Undersigned has considered less drastic
sanctions than dismissal but concludes that any such effort
would be futile given Plaintiff's failure to participate
in these proceedings.
Undersigned, therefore, RECOMMENDS that this
case be dismissed for want of prosecution.
party objects to this Report and Recommendation, that party
may, within fourteen (14) days of the date of this Report,
file and serve on all parties written objections to those
specific proposed findings or recommendations to which
objection is made, together with supporting authority for the
objection(s). A judge of this Court shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made. Upon proper objections, a judge of this
Court may accept, reject, or modify, in whole or in part, the
findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge
with instructions. 28 U.S.C. § 636(b)(1). Failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district ...