Davidson v. City of Alma et al

Filing 40

ORDER Adopting 39 Report and Recommendation, Dismissing 1 Complaint Without Prejudice, and Denying 30 Motion for Summary Judgment as Moot. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
SHANNON MARIE DAVIDSON,
Plaintiff,
v.

Case No. 1:17-cv-12686
Hon. Thomas L. Ludington

CITY OF ALMA, ZACHARY FERRIER,
JASON BIEHL and JACOB GULICK,
in their individual and official capacities,
Defendant.
_________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION, DISMISSING
COMPLAINT WITHOUT PREJUDICE, AND DENYING MOTION FOR SUMMARY
JUDGMENT AS MOOT
On October 9, 2018, Defendants filed a motion for summary judgment. ECF No. 30.
Plaintiff was ordered to respond to that motion on October 10, 2018. ECF No. 32. Instead of
filing a response, Plaintiff filed a motion for more time to secure an attorney and in opposition to
dismissal. ECF No. 34. Plaintiff was initially represented by counsel but a motion to withdraw
was filed and it was granted on June 25, 2018. ECF No. 21. In the Order, Plaintiff was instructed
that she had 30 days to find new counsel and that if no appearance were filed within that time
period, “the Court will assume that Ms. Davison intends to proceed pro se in this matter.” ECF
No. 21 at PageID.86. On June 26, 2018, the Court also granted a motion to stay the case and the
deadlines associated with the Court’s scheduling Order to and including July 30, 2018, to allow
Plaintiff to find new counsel. ECF No. 24. Pretrial matters were referred to Magistrate Judge
Patricia T. Morris. ECF No. 28.

Plaintiff was unable to secure new counsel and therefore asked the Court for more time to
do so. The Court found that Plaintiff had been given more than enough time and latitude to allow
her time to find new counsel so Plaintiff’s motion was denied. ECF No. 38. In the Order, the
Court noted that since Plaintiff had not filed a proper response to the motion for summary
judgment filed by all defendants, and since she may have been relying on the Court granting her
an extension to find an attorney who could respond to the motion, the Court would allow
Plaintiff time to file a response to Defendant’s motion for summary judgment before analyzing
that motion on the merits. The Court gave Plaintiff until January 22, 2019 to file any response to
the summary judgment motion and warned Plaintiff that if no response was filed by that date, the
Court could also recommend dismissal of Plaintiff’s case for failure to prosecute under Fed. R.
Civ. P. 41(b). Id. Plaintiff did not respond to the motion for summary judgment and has not
appeared in any way since the Court’s Order was entered on January 8, 2019.
On February 22, 2019, Judge Morris filed a report, recommending that the Court dismiss
the complaint without prejudice under rule 41(b) for failure to prosecute and deny Defendant’s
motion for summary judgment as moot. ECF No. 39.
Although the magistrate judge’s report explicitly states that the parties to this action
could object to and seek review of the recommendation within fourteen days of service of the
report, neither party has filed any objections. The election not to file objections to the magistrate
judge’s report releases the Court from its duty to independently review the record. Thomas v.
Arn, 474 U.S. 140, 149 (1985). The failure to file objections to the report and recommendation
waives any further right to appeal. Id.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation,
ECF No. 39, is ADOPTED.
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It is further ORDERED that the complaint, ECF No. 1, is DISMISSED without
prejudice under rule 41(b) for failure to prosecute.
It is further ORDERED that Defendant’s motion for summary judgment, ECF No. 30, is
DENIED as moot.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: March 19, 2019

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney of record herein by electronic means and to
Shannon Marie Davidson, 210 Hillsdale Street, Alma, MI 48801 by
first class U.S. mail on March 19, 2019.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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