United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge.
REPORT AND RECOMMENDATIONS
L. Ovington United States Magistrate Judge.
Ferderee Morris filed a pro se Complaint in the
Butler County, Ohio Court of Common Pleas, asserting that her
former employer Defendant Amazon.com Services, Inc. (Amazon)
discriminated against her in violation of the Americans with
Disabilities Act (ADA). Amazon removed the case to this Court
and has since filed a Motion to Dismiss Plaintiff's
Complaint. (Doc. #6). Amazon contends that dismissal of
Plaintiff's Complaint under Fed.R.Civ.P. 12(b)(6) is
warranted because it fails to state a plausible ADA claim.
March 28, 2019, the Court notified Plaintiff that Amazon had
filed a Motion to Dismiss and that her response to it was due
by April 18, 2019. (Doc. #7). The Notice also informed
Plaintiff that if she failed to file a timely response to
Amazon's Motion to Dismiss, the Motion may be granted and
her case dismissed. Id. The Court later granted
Plaintiff an extension of time to respond to May 28, 2019.
This provided Plaintiff with roughly an additional month to
file her response to Amazon's Motion. Plaintiff did not
file a timely response to Amazon's Motion to Dismiss, and
she has not participated in this case since filing her Motion
for Extension of Time three months ago.
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 v. Wabash R.R., 370 U.S. 626,
630-31 (1962). Plaintiff's failure to respond to
Amazon's Motion to Dismiss leaves the record void of any
explanation by her for not filing a Memorandum in Opposition
or other response to Amazon's Motion. Her silence,
moreover, after the Court granted her Motion to Extend Time
to Respond to Amazon's Motion leaves the record void of
any reason for her failure to prosecute. In light of these
circumstances, dismissal of this case is warranted due to her
failure to prosecute. See id.
Plaintiff's failure to respond Amazon's Motion to
Dismiss indicates that she has waived and abandoned her
claims against Amazon. See Shoup v. Doyle, 974
F.Supp.2d 1058, 1081 (S.D. Ohio 2013) (Rice, D.J.) (citing
and quoting parenthetically Scott v. Tennessee, 878
F.2d 382, 1989 WL 72470, at *2 (6th Cir. 1989) (“if a
plaintiff fails to respond or otherwise oppose a
defendant's motion, then the district court may deem the
plaintiff to have waived opposition to the motion.”);
see Coley v. State of Ohio Dept. of Rehab., 2016 WL
5122559, at *1 (S.D. Ohio 2016) (citing Humphrey v. U.S.
Attorney General's Office, 279 Fed.Appx. 328, 331
(6th Cir. 2008).
Plaintiff has not waived or abandoned her claims, this case
is incorrectly venued. The events Plaintiff describes in her
Complaint, or at least a substantial part of them, occurred
at an Amazon facility in Fairfield in Butler County, Ohio.
The case is therefore correctly venued in the Southern
Division of this District. See 28 U.S.C.
§§ 115(b), 1406(b)(2); see also S.D. Ohio
Civ. R. 82.1(b). “A district court of a district in
which is filed a case laying venue in the wrong division or
district shall dismiss, or if it be in the interest of
justice, transfer the case to any district or division in
which it could have been brought.” 28 U.S.C. §
1406(a). The interest of justice would not be served by
transferring this case to the Southern Division of this Court
because Plaintiff has abandoned or waived her claims and
failed to prosecute this case. Dismissal is therefore also
warranted for improper venue. See id.
IS THEREFORE RECOMMENDED THAT:
Defendant Amazon.com Services, Inc.'s Motion to Dismiss
(Doc. #6) be GRANTED; and
case be terminated on the record of this Court.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within FOURTEEN days after
being served with this Report and Recommendations. Such
objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support
of the objections. If the Report and Recommendation is based
in whole or in part upon matters occurring of record at an
oral hearing, the objecting party shall promptly arrange for
the transcription of the record, or such portions of it as
all parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party's
objections within FOURTEEN days after being
served with a copy thereof.
to make objections in accordance with this procedure may
forfeit rights on appeal. See Thomas v. Arn, 474
U.S. 140 (1985); United States v. ...