McCormack v. Westland et al

Filing 97

ORDER of Dismissal With Prejudice. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARIA MCCORMACK,
Plaintiff,

Case No. 15-cv-14507
Hon. Matthew F. Leitman

v.
CITY OF WESTLAND, et al.,
Defendants.
__________________________________________________________________/
ORDER OF DISMISSAL WITH PREJUDICE
As this Court has outlined in two previous orders (see ECF ## 90, 94), the
parties to this action entered into a binding settlement agreement and placed that
agreement on the record at the conclusion of a settlement conference held on October
17, 2017. The Court and the parties then clarified certain terms of the agreement on
the record during a subsequent status conference held on December 18, 2017. (See
Tr., ECF #80.) But as further detailed in this Court’s prior orders, Plaintiff has
refused to execute the documents necessary to memorialize and finalize the agreedupon and binding settlement. (See ECF ## 90, 94.) The Court has carefully
considered and rejected all of Plaintiff’s arguments as to why she should not be
required to execute the documents memorializing the settlement to which she agreed.
(See id.)

1

On August 20, 2018, this Court entered an order directing the Defendants to
send to Plaintiff (1) written settlement agreements reflecting the agreed-upon terms
that were placed on the record and (2) an I.R.S. Form W-9. (See ECF #94 at Pg. ID
1246.) In the same order, the Court directed Plaintiff to execute the settlement
agreements and W-9 Forms that Defendants sent to her. (See ECF #94 at Pg. ID
1246.) The Court further ordered to Plaintiff to file on the Court’s docket, by not
later September 11, 2018, a certificate confirming that she executed these documents
and returned them to Defendants. (See id.) The Court advised Plaintiff that her
failure to execute the agreements, complete the W-9 Forms, return them to
Defendants, and file the required certificates would result in the dismissal of this
action with prejudice. (See id. at Pg. ID 1248.)
The Defendants have filed certifications with the Court confirming that they
complied with the Court’s order and sent the settlement agreements and W-9 forms
to the Plaintiff. (See ECF ## 95, 96.) But Plaintiff has not fulfilled her obligations
under the Court’s order. She has not filed the required certificate confirming that
she executed the settlement agreements, completed the W-9 Forms, and returned
them to the Defendants. (And, given Plaintiff’s prior adamant opposition to
complying with the agreed-upon settlement terms, the Court has no reason to believe
that Plaintiff signed the documents, returned them to Defendants, and then simply
failed to file the required certificate.)
2

Under these circumstances, dismissal of Plaintiff’s Complaint with prejudice
is appropriate under Rule 41(b) of the Federal Rules of Civil Procedure. That rule
authorizes district courts to involuntarily dismiss an action where “the plaintiff fails
to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court
order…”

In this Circuit, courts consider four factors in determining whether

dismissal under Rule 41(b) is appropriate:
(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 sanctions were
imposed or considered before dismissal was ordered.
Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008). Here,
the balance of these factors weighs in favor of dismissal.
First, Plaintiff has willfully refused to comply with the Court’s August 20,
2018, order requiring her to execute the settlement documents and to file a
certification confirming that she did so. (See ECF #94.) Indeed, she has announced
her intent not to fulfill her court-ordered obligation to settle: “The Court can issue
any order it chooses but [Plaintiff] hopes the Court also realizes that she cannot and
will not sign the settlement agreement which waives her right to appeal.” (Pl.’s Resp.
to Mot. To Enforce Settlement, ECF #89 at Pg. ID 1147.) Plaintiff’s intentional
choice not to fulfill her obligations under the order constitutes, at a minimum, “a

3

reckless disregard for the effect of [her] conduct on those proceedings.” Schafer, 529
at 737 (describing level of conduct that amounts to willfulness under the rule).
Second, the Defendants have been prejudiced by Plaintiff’s failure to comply
with her obligations under the Court’s order. “[F]or purposes of the second factor,
[] a defendant is prejudiced by the plaintiff’s conduct where the defendant waste[d]
time, money, and effort in pursuit of cooperation which [the plaintiff] was legally
obligated to provide.” Id. (internal quotation marks omitted). Here, Defendants
incurred legal fees when their attorneys drafted the settlement agreements that
Plaintiff was obligated to execute, and Defendants will suffer prejudice if they do
not obtain the benefit of the fees expended on the settlement documents – i.e., the
dismissal of this action with prejudice.
Third, the Court expressly advised Plaintiff that her failure to execute the
settlement documents, return them to Defendants, and file the required certificate
would result in dismissal of her action. (See ECF # 94 at Pg. ID 1248.)
Finally, the Court has considered lesser sanctions, but none would be
appropriate here. As noted above, Plaintiff has made clear that she will not execute
the settlement documents memorializing the terms that she agreed to on the record.
Thus, there is no reason to believe that any sanction short of dismissal with prejudice
will yield compliance with the Court’s order.

4

Under all of these circumstances, dismissal with prejudice is the appropriate
sanction under Rule 41(b) for Plaintiff’s refusal to comply with the Court’s order.
Numerous courts have dismissed (or affirmed dismissals) of actions under this rule
where a plaintiff failed to comply with a court order requiring the execution of
settlement documents. See, e.g., Lewis v. School Dist. #70, 648 F.3d 484 (7th Cir.
2011); Gugliara v. Jones, 2010 WL 3257765 (E.D.N.Y. July 12, 2010), report and
recommendation adopted at 2010 WL 3257739 (E.D.N.Y. Aug. 16, 2010); Cho v.
Tomczyk, 2007 WL 3254294 (E.D.N.Y. Nov. 2, 2007). The result here should be
the same.

Accordingly, IT IS HEREBY ORDERED that this action is

DISMISSED WITH PREJUDICE.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: September 20, 2018
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on September 20, 2018, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

5