United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE
April 5, 2019, plaintiffs filed an application with the Clerk
of Court for entry of default against the only defendant
identified in the complaint, St. Augustine School, pursuant
to Fed.R.Civ.P. 55(a). (Doc. No. 9.) On April 11, 2019, the
Clerk entered default against St. Augustine School. (Doc. No.
10.) No. further activity on the docket took place until the
Court entered a non-document order, noting that while default
had been entered against St. Augustine School, plaintiffs had
“failed to move for a default judgment in accordance
with Fed.R.Civ.P. 55(b).” (Non-document Order, Aug. 13,
2019.) The Court directed plaintiffs to “show cause by
August 21, 2019 why this case should not be dismissed for
failure to prosecute.” (Id.)
did not respond to the show cause order, or otherwise move
for default judgment against St. Augustine School. Instead,
plaintiffs requested leave pursuant to Fed.R.Civ.P. 26(d) to
conduct expedited discovery for the purpose of identifying
other possible defendants to this action. (Doc. No. 12
(Motion).) In a Memorandum Opinion and Order dated September
26, 2019, the Court granted plaintiffs' motion for
expedited discovery. (Doc. No. 13 (Memorandum Opinion and
Order [“Order”]).) In particular, the Court's
the Court grants plaintiffs leave for sixty (60) days from
the date of this Order to conduct limited discovery outlined
[in the Order]. At the end of this period (and if still
appropriate), and by no later than November 26,
2019, plaintiffs shall move for default judgment against
St Augustine School and move to amend the complaint to add
additional defendants identified in early discovery or advise
the Court that no further defendants will be added to this
action. Failure to take this action will result in
dismissal of this litigation for failure to prosecute.
at 121-22 (page numbers refer to the page identification
number generated by the Court's electronic docketing
system) (emphasis added and footnote omitted)).
review of the docket reflects that plaintiffs have failed to
take any of the action directed by the Court in its September
26, 2019 Order, and the time for taking such action has
passed. Specifically, plaintiffs have failed to move for
default judgment against St. Augustine School, move to amend
to add other defendants, or otherwise advise the Court that
no further defendants will be added to this litigation. As
such, plaintiffs are in violation of the Court's Order.
Rule 41(b) of the Federal Rules of Civil Procedure, a federal
court may sua sponte dismiss a claim for failure to
prosecute or comply with an order. Link v. Wabash R.R.
Co., 370 U.S. 626, 630-32, 82 S.Ct. 1386, 8 L.Ed.2d 734
(1962); Steward v. City of Jackson, 8 Fed.Appx. 294,
296 (6th Cir. 2001). Indeed, the “authority of a
federal trial court to dismiss a plaintiffs action with
prejudice because of his failure to prosecute cannot
seriously be doubted.” Link, 370 U.S. at 629.
“The power to invoke this sanction is necessary in
order to prevent undue delays in the disposition of pending
cases and to avoid congestion in the calendars of the
District Courts.” Id. at 629-30.
“[D]istrict courts possess broad discretion to sanction
parties for failing to comply with procedural
requirements.” Tetro v. Elliott Popham Pontiac,
Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988,
991 (6th Cir. 1999). When exercising its discretion, a
district court considers a variety of factors, including
whether the party was warned of the possible consequences and
whether less drastic sanctions are available. Wu v. T.W.
Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005).
the relevant factors, the Court finds that dismissal for
failure to prosecute is appropriate. First, fault lies with
plaintiffs for failing to comply with the Court's Order
and its previous show cause order. Further, this matter has
now been pending for more than nine (9) months and not a
single defendant has been properly served. See generally
Miller v. Michigan Dep't of Corr. Healthcare
Providers, 986 F.Supp. 1078, 1079 n.1 (W.D. Mich. 1997)
(failure to identify John Doe defendants constitutes failure
to prosecute and warrants dismissal under both Rules 4(m) and
41(b)). Moreover, the Court specifically warned plaintiffs in
its show cause order and again in its recent Order that
failure to comply with the Court's instructions would
result in dismissal of this action. Finally, the Court
already extended the deadlines for service in this action and
permitted plaintiffs to conduct early discovery, and the case
is still not in a position to go forward with proper parties.
Under these circumstances, dismissal with prejudice is
these reasons, the Court hereby DISMISSES this action with
prejudice under Fed.R.Civ.P. 41(b) for failure to prosecute.
This case is closed.