Kimmel v. Jackson County

Filing 40

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PAUL KIMMEL,
Plaintiff,

Case No. 16-11952

v.

Paul D. Borman
United States District Judge

COUNTY OF JACKSON, JERARD
JARZYNKA, CHRISTOPHER DICKERSON,
CRAIG PAPPIN, and ANTHONY RADUAZO,
in their individual and official capacities,
Defendants.
________________________________________/
ORDER OF DISMISSAL WITH PREJUDICE FOR FAILURE TO PROSECUTE
On February 17, 2017, the Court issued an Order adjourning a February 22, 2017
scheduled status conference to accommodate the Plaintiff and warning the Plaintiff that his
attendance at the rescheduled status conference on Wednesday, March 1, 2017, was
mandatory. The Court expressly warned the Plaintiff in its February 17, 2017 Order that he
“must attend” the rescheduled status conference “or face dismissal of his claims for failure
to prosecute.” ECF No. 38, Order Canceling Hearing and Rescheduling Status Conference
for Wednesday, March 1, 2017. Plaintiff failed to appear on March 1, 2017, as ordered,
without any cause or justification communicated to the Court.
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
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to enter a sua sponte order of dismissal.” Steward v. City of Jackson, Tenn., 8 F. App’x 294,
296 (6th Cir. 2001) (citing Link v. Wabash R.R., 370 U.S. 626, 630 (1962)). The rule
contemplates that the courts have an inherent power, “acting on their own initiative, 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 630.
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 a case in which
the plaintiff has taken no action for a reasonable time, absent a showing of good cause for
the inactivity.
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. Steward,
8 F. App’x at 296. “Prior notice, or lack thereof, is the key consideration when determining
whether a district court abuses its discretion in dismissing a case for failure to comply with
a court order.” Steward, 8 F. App’x at 296 (citing Stough v. Mayville Community Schools,
138 F.3d 612, 615 (6th Cir. 1998)). The failure to comply with a “readily comprehended”
Court order “constitutes bad faith or contumacious conduct and justifies dismissal.”
Steward, 8 F. App’x at 296-97 (citing Carver v. Bunch, 946 F.2d 451, 454 (6th Cir. 1991)
and Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)).
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The Court finds that Plaintiff’s failure to attend the March 1, 2017 status conference,
having been warned of the consequences of his failure to appear, was both willful and in bad
faith. Plaintiff was warned that his failure to appear for the rescheduled status conference
on March 1, 2017, would result in dismissal of his claims for failure to prosecute. In addition
Defendants, who have been waiting months for resolution of their long-pending motions to
dismiss, have been prejudiced by Plaintiff’s conduct.
Accordingly, the Court DISMISSES Plaintiff’s Complaint WITH PREJUDICE
pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute.
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: March 2, 2017
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 March 2, 2017.

s/Deborah Tofil
Case Manager

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