Dost v. Newton et al
ORDER Dismissing Case Without Prejudice. Signed by District Judge Thomas L. Ludington. (SGam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number 12-cv-13068
Honorable Thomas L. Ludington
LISA NEWTON et al.,
ORDER DISMISSING CASE WITHOUT PREJUDICE
Civil litigation in the Anglo-American tradition is fundamentally adversarial. Private
parties, not courts, initiate and prosecute the litigation. Sometimes, however, parties do the one
but not the other. They begin a case but don’t advance it. When this happens, authorities back to
Blackstone instruct, the court has the authority to dismiss the case for lack of prosecution. See
generally Link v. Wabash R. Co., 370 U.S. 626, 630 (1962) (citing 3 William Blackstone,
Commentaries 295–96 (1768)). For the reasons that follow, the Court will exercise that authority
in this case.
On July 12, 2012, Plaintiff Sara Dost filed suit in this Court against Defendants Lisa
Newton, Star Wood, Patricia Brandt, and Sherry Barnett. The gravamen of Plaintiff’s complaint
is that Defendants “participated in a scam to defraud Plaintiff out of $95,818.50.” Compl. ¶ 1.
Summons for the four defendants were issued on July 12, 2012. On October 2, 2012, a
certificate of service was returned on Mses. Wood and Brandt. (To date, no proof of service on
Mses. Newton and Barnett has been filed.) Neither Ms. Wood or Brandt appeared or answered.
So on November 28, 2012 Plaintiff obtained defaults against Mses. Wood and Brandt.
Two months passed. No further activity occurred on the Court’s docket. On January 31,
2013, an order was issued directing Plaintiff to show cause on or before February 19, 2013 why
the case should not be dismissed for lack of prosecution.
On February 18, Plaintiff requested the clerk enter default judgment against Ms. Wood in
the amount of $3,182.00 plus costs and against Ms. Brandt in the amount of $5,696.00 plus costs.
On February 19, Plaintiff also responded to the order to show cause. The response
explained that “Plaintiff has been attempting efforts at locating the remaining Defendants in
order to accomplish service of the summons and complaint.” Pl.’s Resp. 1. The response further
explained that Plaintiff’s “counsel plans to seek Plaintiff’s authority to file a voluntary dismissal
of the unlocated Defendants immediately upon Plaintiff’s release from the hospital.” Id. And
the response notes that Plaintiff had requested the entry of default judgment against Mses. Wood
and Brandt. Id. at 2.
On February 20, Plaintiff’s requests for default judgment were denied because neither the
complaint nor the affidavits supporting the request had any documentation demonstrating an
entitlement to the amount requested.
Two months have passed. Yet since the clerk’s denial of the default judgments in
February 2013, no further activity in this case has occurred on the Court’s docket.
“If a defendant is not served within 120 days after the complaint is filed,” Federal Rule
of Civil Procedure 4(m) provides, “the court — on motion or on its own after notice to the
plaintiff — must dismiss the action without prejudice against that defendant or order that service
be made within a specified time. But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.”
In this case, more than 120 days passed since the filing of the complaint. No proof of
service on Mses. Newton and Barnett has been filed with the Court. Plaintiff has not requested
an extension of time to serve those defendants. And she has been cautioned once about the
consequences of not prosecuting her case. The claims against Mses. Newton and Barnett will be
dismissed without prejudice.
As noted, courts possess the inherent authority to dismiss a case for lack of prosecution.
Link v. Wabash R. Co., 370 U.S. 626, 629 (1962); see also Carter v. City of Memphis, Tenn., 636
F.2d 159, 161 (6th Cir.1980) (“It is clear that the district court does have the power . . . to enter a
sua sponte order of dismissal.”). “The power is of ancient origin,” the Supreme Court observes,
and “cannot seriously be doubted.” Link., 370 U.S. at 629 (collecting sources).
Here, Plaintiff was cautioned of this in the previous show cause order.
responded by requesting the entry of default judgment against Mses. Wood and Brandt. That
request, however, was denied two months ago. No further activity in this case has occurred on
the Court’s docket since. Put simply, Plaintiff has not prosecuted her case.
The claims against Mses. Wood and Brandt will also be dismissed without prejudice.
Accordingly, it is ORDERED that Plaintiff’s complaint is DISMISSED WITHOUT
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: April 23, 2013
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on April 23, 2013
s/Tracy A. Jacobs
TRACY A. JACOBS
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