Naji et al v. Lincoln

Filing 37

ORDER DISMISSING CASE - Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LOUBNA NAJI and AMAL ANJIEH
AOUM, individually and as next friend
for her minor children, NAZIH BARJAS,
MOHAMED BARJAS and ZACK BARJAS,

Case No. 13-10738

Honorable Paul D. Borman
United States District Judge

Plaintiffs,
v
ANDREW RICHARD LINCOLN,
Defendant
_______________________________/

ORDER OF DISMISSAL WITH PREJUDICE
This Court set this matter for a Final Pretrial Conference for December 14, 2015, at 2:30
p.m., and notified the parties of said Final Pretrial Conference and the scheduled date, place and time
in its PRETRIAL CIVIL CASE MANAGEMENT AND SCHEDULING ORDER on August 6,
2015. (ECF No. 35.) The Court convened the Final Pretrial Conference at the noticed date, time
and place with counsel for Defendant appearing but Plaintiffs and Plaintiffs’ counsel having failed
to appear, as ordered by this Court. Plaintiffs’ failure to appear for the Final Pretrial Conference was
just another instance of the dilatory and contumacious conduct that Plaintiffs have exhibited since
the inception of this case. Prior to their failure to appear for the Final Pretrial Conference, Plaintiffs
were sanctioned and warned that their previous failures to cooperate and to comply with Orders of
this Court could result in dismissal of this action with prejudice. See ECF No. 34, 7/14/15 Order
Adopting Magistrate Judge Majzoub’s Report and Recommendation. The Court’s July 14, 2015
Order imposed sanctions on the Plaintiffs and expressly warned that “further failures to cooperate

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in the progress of this litigation, or failures to comply with Court orders, may result in dismissal of
this case with prejudice.”
Rule 41(b) authorizes the involuntary dismissal of a case for want of prosecution if “the
plaintiff fails to prosecute or to comply with [the federal rules of civil procedure] or a court order.”
Fed. R. Civ. P. 41(b). “Rule 41(b) recognizes the power of the district court to enter a sua sponte
order of dismissal.” Steward v. City of Jackson, Tenn., 8 F. App’x 294, 296 (2001) (citing Link v.
Wabash R.R., 370 U.S. 626, 630 (1962)). E.D. Mich. L.R. 41.2 likewise permits the Court, on its
own motion and after reasonable notice or an application of a party, to enter an Order dismissing or
remanding a case unless good cause is shown.
When contemplating dismissal of an action under Rule 41(b), a court will consider: (1)
whether the party’s failure to cooperate is due to willfulness, bad faith, or fault; (2) whether the
adversary was prejudiced by the dilatory conduct of the party; (3) whether the dismissed party was
warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were
imposed or considered before dismissal was ordered. Sexton v. Uniroyal Chemical Co., Inc., 62 F.
App’x 615, 618 (6th Cir. 2003). The rule contemplates that the court has an inherent power, “acting
on their own, to clear their calendars of cases that have remained dormant because of inaction or
dilatoriness of the parties seeking relief.” Link, 370 U.S. at 626.
In this case, each of the four factors weighs in favor of dismissal of this action with
prejudice. Plaintiffs’ failure to cooperate is well documented in the Court’s prior Orders. Most
recently, in addition to failing to appear for the Final Pretrial Conference, Plaintiffs failed to convene
a Pretrial Conference as required by this Court’s Case Management Order and, when finally
submitting an untimely “Joint Final Pretrial Order,” failed to comply with their obligation to

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cooperate and meet with opposing counsel in preparing that Order. Defendant, who faces claims
for damages arising out of an automobile accident that occurred over three years ago, has most
certainly been prejudiced by Plaintiffs’ dilatory conduct, and most particularly by Plaintiffs’
repeated failures to provide medical clearances and to appear for depositions in this action in which
they seek damages for alleged physical and emotional injuries. Plaintiffs have been warned multiple
times that continued conduct of this nature could result in dismissal of this case. Prior failures to
cooperate and to comply with the Court’s previous Orders have been met with sanctions short of
dismissal, including exclusion of evidence from trial. The time for less drastic sanctions has now
passed. “[A]ny sanction short of dismissal would permit the repeatedly recalcitrant [Plaintiffs] to
benefit from [their] tactical obstruction.” Sexton, 62 F. App’x at 621.
Accordingly, the Court hereby finds a continuing and contumacious failure to proceed with
this case by Plaintiffs and failure to comply with this Court’s Orders and hereby Orders this case
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: December 18, 2015
CERTIFICATE 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 December 18, 2015.
s/Deborah Tofil
Case Manager

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