Strunk v. Liberty Insurance Corporation et al
Filing
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MEMORANDUM OPINION & ORDER: (1) All remaining claims against unknown defendants in this action are DISMISSED WITH PREJUDICE due to Plaintiff's failure to prosecute; and (2) Clerk shall STRIKE THIS MATTER FROM THE COURT'S ACTIVE DOCKET. Signed by Judge Joseph M. Hood on 5/20/2019.(JJ)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JACK A. STRUNK,
Plaintiff,
v.
LIBERTY INSURANCE CORPORATION,
et al.,
Defendants.
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Case No.
5:18-cv-288-JMH
MEMORANDUM OPINION
AND ORDER
***
On May 2, 2019, the Court entered an order requiring Plaintiff
Jack Strunk to show cause no later than May 16, 2019, why this
action should not be dismissed for failure to prosecute.
[DE 13].
At present, Strunk has failed to respond to the Court’s show cause
order and the time for a response has passed.
Here, dismissal of this action is justified for three reasons.
First, Strunk’s failure to comply with the Court’s show cause order
demonstrates a disregard for the Court’s orders and instructions
and indicates that Strunk is no longer interested in diligently
prosecuting this action.
Second, Strunk has failed to properly
name previously unknown or John Doe defendants even though the
previously unknown defendants have apparently been identified and
the Court has warned Strunk on multiple occasions that named
defendants
must
be
substituted
for
unidentified
or
John
Doe
defendants after discovery.
As a result, this action is DISMISSED
WITH PREJUDICE.
I.
Procedural History
Plaintiff Jack Strunk initially brought this lawsuit against
Liberty Insurance Corporation and two “Unknown Defendants.”
1].
[DE
On February 20, 2019, the Court dismissed all claims against
Liberty with prejudice.
[DE 10].
defendants in this action.
explained
that
Strunk
had
That left only two unidentified
After dismissal of Liberty, the Court
to
identify
and
substitute
named
Defendants in place of the unknown or John Doe defendants if this
action was to continue.
[DE 10 at 5-6, Pg ID 59-60].
Subsequently, on March 8, 2019, Strunk filed a status report
indicating that the identities of the two Unknown Defendants had
been
determined
as
Karen
Roark
and
Jeff
Rich.
[DE
11].
Additionally, Strunk indicated that he intended to pursue claims
against these now identified defendants.
[Id.].
In response, the
Court continued all remaining deadlines in the scheduling order
between Strunk and Liberty.
Time passed.
substitute
defendants.
named
[DE 12].
Strunk never moved to amend his complaint to
parties
for
the
two
previously
unknown
As such, on May 2, 2019, the Court entered an order
again explaining that Strunk had to substitute named defendants
for the previously unknown defendants and requiring Strunk to show
cause no later than May 16, 2019, why the action should not be
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dismissed for failure to prosecute.
[DE 13].
Strunk has not
replied to the Court’s show cause order and the time to respond
has passed.
Thus, this action is ripe for review.
II.
Strunk’s
failure
to
Analysis
substitute
named
defendants
for
the
previously unknown defendants and failure to respond to the Court’s
show cause order indicates that Strunk has failed to diligently
prosecute this matter and suggests that Strunk is not interested
in diligently litigating this action going forward.
Federal Rule of Civil procedure 41(b) “gives courts the
authority to dismiss a case for ‘failure of the plaintiff to
prosecute or to comply with these rules or any order of the
court.’”
Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 362-63 (6th
Cir. 1999) (citing Fed. R. Civ. P. 41(b)).
The Sixth Circuit has
held that district courts must be given substantial discretion in
docket management and avoidance of unnecessary burdens on taxsupported courts and opposing parties.
Id. at 363 (citing Matter
of Sanction of Baker, 744 F.2d 1438, 1441 (10th Cir. 1984)).
Four factors are to be considered when determining whether an
action should be dismissed for failure to prosecute: “(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
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sanctions were imposed or considered before dismissal of the
action.”
Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 589 (6th
Cir. 2001).
A.
The relevant factors are considered below.
Strunk’s failure to comply with the Court’s orders and
instructions is due to fault.
While the Court hesitates to impute willfulness or bad faith
on the part of the Plaintiff for failure to respond, there is a
clear indication that the failure to prosecute in this matter is
due to the fault of the Plaintiff.
First, on multiple occasions, the Court noted that if Strunk
wished to continue this action against the unknown defendants that
he must substitute named defendants for the previously unknown
defendants since discovery had concluded.
[DE 10 at 5-7, Pg ID
59-61; DE 12; DE 13].
Second, Strunk has disregarded the Court’s order to show
cause. On May 2, 2019, the Court entered an order requiring Strunk
to show cause by May 16, 2019.
[DE 13].
It appears that Strunk’s
attorney received notice of the Court’s show cause order through
the Court’s CM/ECF electronic filing system.
Moreover, the show
cause order stated that “[f]ailure to adequately respond to this
order may result in dismissal of this action without further notice
from the Court.”
[Id. at 3, Pg ID 68].
Finally, no apparent
good cause exists for Strunk’s failure to respond to the Court’s
show cause order.
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In sum, Strunk’s failure to substitute named parties for the
unknown defendants and Strunk’s failure to comply with the Court’s
show cause order is due to the fault of Strunk and Strunk’s
attorney.
As a result, the first factor weighs in favor of
dismissal.
B.
There is no clear indication of prejudice to the
defendants.
There is no apparent indication that Strunk’s failure to
prosecute directly prejudices the unknown defendants.
Failure to
prosecute may prejudice defendants, even if they have not appeared
in the action, because civil litigation can be time consuming and
stressful, even when an action is just pending.
status
report
indicated
that
he
intended
Strunk’s previous
to
serve
the
now
identified defendants, but it is unclear it he has done so at this
juncture.
[DE 11 at 1, Pg ID 62].
Here, since it is unclear if
the remaining defendants have been served or are aware of this
action, there is no clear indication that Strunk’s failure to
prosecute has prejudiced the defendants.
As such, the second
factor weighs against dismissal.
C.
Strunk was warned that failure to comply with the Court’s
orders may result in dismissal.
Strunk was warned that failure to name the previously unknown
defendants and that failure to respond to the Court’s show cause
order might result in dismissal without further notice.
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First, on two occasions the Court noted that if Strunk wanted
to
continue
this
litigation
against
the
previously
unknown
defendants that he must properly name them since they have been
identified.
[DE 10; DE 12].
The “[p]laintiff may bring an action
against unknown John Doe defendants, but plaintiff must substitute
named defendants for those unknown defendants after the completion
of discovery.”
Simmons v. District of Columbia, 750 F. Supp. 2d
43, 45 (D.D.C. 2011).
In this case, discovery ended in February.
At present, Strunk has not attempted to substitute named defendants
for the previously unknown defendants.
Second, the Court warned Strunk that failure to respond to
the show cause order may result in dismissal of the action without
further notice from the Court.
[DE 13 at 3, Pg ID 68].
Still,
even considering that warning, Strunk failed to respond to the
order to show cause.
In sum, the third factor weights in favor of dismissal because
Strunk was warned on multiple occasions that failure to substitute
named defendants for previously unknown defendants and failure to
respond to the Court’s order to show cause would likely result in
dismissal.
D.
The Court attempted to employ less drastic measures.
Finally, the Court gave Strunk ample time to substitute named
parties for the previously unknown defendants and attempted to
employ less drastic measures.
First, the Court asked for a status
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report to determine if Strunk intended to continue this litigation
after Liberty was dismissed.
[DE 10].
Second, the Court’s show
cause order put Strunk on notice that his cooperation was required
in this matter and was an attempt to employ less drastic sanctions.
[DE 13].
As a result, the fourth factor weighs in favor of
dismissal.
III.
Conclusion
Ultimately, while the Court is aware that dismissal under
Rule 41(b) is a harsh sanction, three of the four requisite factors
weigh in favor of dismissal of this action.
Since February 14,
2019, this action has involved the Plaintiff against two unknown
defendants. [DE 10]. Plaintiff’s subsequent failure to substitute
named defendants for these unknown defendants and failure to comply
with the Court’s order to show cause justifies dismissal in this
matter. This Court cannot prosecute this action on Strunk’s behalf
and is not obliged to allow this case to sit on the Court’s docket
indefinitely without named defendants.
Accordingly, IT IS ORDERED as follows:
(1)
All remaining claims against the unknown defendants in
this action are DISMISSED WITH PREJUDICE pursuant to Rule 41(b)
due to Plaintiff Jack Strunk’s failure to prosecute; and
(2)
The Clerk of the Court shall STRIKE THIS MATTER FROM THE
COURT’S ACTIVE DOCKET.
This the 20th day of May, 2019.
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