United States District Court, S.D. Ohio, Eastern Division
MICHAEL H. WATSON 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 October 23, 2019
and November 14, 2019 Show Cause Orders (ECF Nos. 39, 41),
wherein the Court directed Plaintiff to show cause for her
failure to appear for a telephonic discovery conference and
to update her address. For the reasons that follow, it is
RECOMMENDED that Plaintiff's action be
DISMISSED pursuant to Federal Rule of Civil
Procedure 41(b) for failure to prosecute.
filed this action on February 5, 2018. (ECF No. 1.) Since
filing this action, Plaintiff has caused significant delay,
failed to comply with the Federal Rules of Civil Procedure,
and failed to comply with clear Court orders.
14, 2019, Defendant State Farm Mutual Automobile Insurance
Company (“State Farm”) filed a Rule 26(f) Report,
asserting that it made multiple attempts to meet and confer
with Plaintiff pursuant to Federal Rule of Civil Procedure
26(f). (ECF No. 30.) According to Defendant State Farm,
Plaintiff did not respond to its attempts to meet and confer
regarding the Rule 26(f) Report and, as a result, it
submitted a Rule 26(f) Report on behalf of itself, only.
(Id.) Accordingly, the Court ordered Plaintiff to
show cause within fourteen (14) days why the Court should not
dismiss this action for Plaintiff's failure to prosecute
as a result of her failure to comply with Rule 26(f) and the
Court's order setting the Preliminary Pretrial
Conference. (ECF No. 31). Plaintiff responded to the
Court's show cause order on July 1, 2019, and the Court
permitted the case to proceed. (ECF No. 35, 37.)
October 10, 2019, following Defendant's representation
that Plaintiff failed to respond to discovery requests, the
Court noticed this action for a telephonic discovery
conference to be held on October 23, 2019. (ECF No. 38.) On
October 23, 2019, the matter came before the Court for the
discovery conference, but Plaintiff failed to appear.
Consequently, the Court entered a Second Show Cause Order,
ordering Plaintiff to show cause within (14) days why the
Court should not dismiss this action with prejudice for
failure to prosecute. (ECF No. 39.) Plaintiff was cautioned
that failure to respond to the Second Show Cause Order would
result in dismissal of this action with prejudice.
receiving notice that the Court's Notice of Telephonic
Discovery Conference was returned to the Court as
undeliverable, the Court entered a Third Show Cause Order.
(ECF Nos. 40, 41.) The Court ordered Plaintiff to provide the
Court with an updated address and justify her failure to do
so earlier. (ECF No. 41.) The Court further ordered Plaintiff
to show cause why the Court should not dismiss this action
for failure to prosecute and warned Plaintiff that her
failure to do so would result in dismissal of this action.
December 2, 2019, Plaintiff submitted a Notice of Change of
Address. (ECF No. 42.) Plaintiff asserts that she intended to
notify the Court about her change of address in August 2019,
but found the postal envelope in her car on November 26,
2019. Plaintiff failed, however, to provide any justification
for her failure to appear at the October 23, 2019 telephonic
Court's inherent authority to dismiss a plaintiff's
action with prejudice because of her 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 ...