United States District Court, S.D. Ohio, Western Division, Dayton
DECISION AND ENTRY
L. Ovington, United States Magistrate Judge
Obie Obie Masango is proceeding pro se and in
forma pauperis. The case is presently before the Court
upon Defendant's Motion to Dismiss for Failure to
Prosecute. (Doc. #20).
contends that dismissal of this case with prejudice is
warranted under Fed.R.Civ.P. 37(b)(2) and 41(b) because Mr.
Masango did not respond to Defendant's Interrogatories
and Requests for Production of Documents. Defendant first
attempted to serve his discovery requests on Mr. Masango by
mailing them to him to his address of record on February 13,
2019. One month later, the postal service returned these
discovery requests to Defendant as undeliverable.
counsel then emailed the discovery requests to Mr. Masango
and asked him to provide a current address. Mr. Masango
responded on April 19, 2019 by emailing a blank document to
Defendant and asserting it was responsive to discovery. He
did not provide Defendant with an updated address. One week
later, Defendant's counsel informed Mr. Masango by email
that the document he had sent was blank and asked him to send
another response. Two weeks later, having heard nothing from
Mr. Masango, Defendant emailed Mr. Masango another request to
provide discovery responses. A further request followed on
May 13, 2019, and Defendant's counsel informed Mr.
Masango that if he did not respond by May 20th,
Defendant would file a motion to compel.
Masango responded on May 15, 2019 with incomplete
interrogatory answers and no documents or other responses to
Defendant's requests for production of documents.
Defendant's counsel emailed Mr. Masango on this same date
asking for complete responses and responsive documents.
two months passed without word from Mr. Masango. On July 18,
2019, Defendant's counsel notified Mr. Masango (by email)
that his discovery responses were incomplete and that he
needed to provide complete responses by July 29, 2019 or face
a motion to compel along with a request to dismiss the case
for failure to prosecute. One outstanding discovery issue
concerned Mr. Masango's previous indication that he had a
video of the incident in question. Defendant's counsel
asked Mr. Masango to produce a copy of the video. This
triggered a response: Mr. Masango said he would not provide
the video or other discovery until the day of trial.
Council filed a Motion to Compel (Doc. #13) to which Mr.
Masango responded with a single sentence stating, “Due
to disclosure of evidence before the trial date, I …
write to revoke the motion to compel by the defense
council.” (Doc. #15).
Court granted Defendant's Motion to Compel and ordered
Mr. Masango to respond to all outstanding discovery requests
on or before November 13, 2019. The Court also placed Mr.
Masango on notice that if he failed to comply with the Order,
“the Court may impose sanctions including the exclusion
of evidence or dismissal of the case for failure to
prosecute.” (Doc. #19, PageID #81).
Court informed Mr. Masango, by way of a Notice, that his
response to the Motion to Dismiss was due on December 9, 2019
and that if he failed to timely respond, Defendant's
Motion to Dismiss may be granted and his Complaint may be
dismissed. (Doc. #21).
next filed his presently pending Motion to Dismiss for Lack
of Prosecution. The Court then notified Mr. Masango that his
response was due by December 9, 2019 and that if he did not
file a timely response, the Motion to dismiss may be granted
and his case dismissed. (Doc. #21).
Court granted Defendant's subsequent Motion to extend the
discovery and dispositive-motion deadlines. Then, beginning
on November 22, 2019, copies of documents mailed to Mr.
Masango at his address of record was returned to the Clerk of
Court as undeliverable. This occurred on four separate
occasions (Doc. #s 23-26) and is unsurprising since Mr.
Masango has not updated his address of record.
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); see also Carpenter v. City of Flint,
723 F.3d 700, 704 (6th Cir. 2013) (“It is well settled
that a district court has the authority to dismiss sua sponte
a lawsuit for failure to prosecute.”) (citations
omitted); Carter v. City of Memphis, 636 F.2d 159,
161 (6th Cir. 1980) (“It is clear that the district
court does have the power under Rule 41(b), Fed. R. Civ. P.,
to enter a sua sponte order of dismissal.”) (citation
omitted)). But dismissal with prejudice for failure to
prosecute is “‘a harsh sanction which the court
should only order in extreme situations showing a clear
record of contumacious conduct by the plaintiff.'”
Carpenter, 723 F.3d at 704 (quoting Tung-Hsiung
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir.
2005)). By comparison, “the sanction of dismissal
without prejudice is a comparatively lenient
sanction, and thus the controlling standards should be
greatly relaxed ... because the dismissed party is ultimately
not irrevocably deprived of his day in court.”
Muncy v. G.C.R., Inc., 110 Fed.Appx. 552, 556 (6th
Cir. 2004) (citing Nwokocha v. Perry, 3 Fed.Appx.
319, 321 (6th Cir. 2001) (per curiam)).
determine whether dismissal for failure to prosecute is
appropriate, four factors are considered:
(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 ...