Moore v. Highland Park, City of et al

Filing 26

OPINION and ORDER Denying Defendant's 20 MOTION to Dismiss for Failure of Plaintiff to Prosecute, ( Plaintiff to file an amended complaint by 4/7/2017), Motions terminated: 20 MOTION to Dismiss for Failure of Plaintiff to Prosecute filed by Highland Park, City of. Signed by District Judge Bernard A. Friedman. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
YALON MOORE,
Plaintiff,
vs.

Civil Action No. 16-CV-12587
HON. BERNARD A. FRIEDMAN

CITY OF HIGHLAND PARK, et al.,
Defendants.
_______________________________/
OPINION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS
This matter is before the Court on defendant’s motion to dismiss for failure to
prosecute [docket entry 20]. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this
motion without a hearing.
On October 18, 2016, the Court granted defendants’ motion to dismiss the
complaint against defendant Highland Park, but not defendant Officer Player. On December 15,
2016, Magistrate Judge Whalen entered a scheduling order requiring plaintiff to file an amended
complaint by January 13, 2017. On December 29, 2017—two weeks before the amended
complaint was due—attorney Ronnie E. Cromer Jr. entered an appearance on the record as
plaintiff’s counsel.
For two months nothing happened. Then, on February 27, 2017, defendant filed
the instant motion to dismiss. Defendant argues that because plaintiff is over two months late to
file her amended complaint,1 the Court should dismiss the case for failure to prosecute.
Plaintiff’s counsel responds that his schedule for January and February was packed and that he

1

The Court notes that plaintiff still has not filed it.

inadvertently used the original, unamended scheduling deadlines, and not Magistrate Judge
Whalen’s deadlines.
Fed. R. Civ. P. 41(b) states: “If the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to dismiss the action or any claim against it.”
In the context of dismissal pursuant to Rule 41(b) for failure to
prosecute, we look to four factors for guidance: (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.
Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999) (citations omitted).
None of Knoll’s factors weigh in favor of dismissal. First, plaintiff’s delay in
filing the amended complaint is due largely to her counsel’s unintentional calendar mishap, and
nothing indicates that he acted in bad faith or intentionally delayed the case.2 Second, the Court
can see no prejudice to defendant from this delay. Third, Magistrate Judge Whalen’s scheduling
order did not indicate that the penalty for missing a deadline was dismissal. Finally, no less
drastic sanctions have yet been considered.
Accordingly,

IT IS ORDERED that defendant’s motion to dismiss is denied.

IT IS FURTHER ORDERED that plaintiff file an amended complaint no later
than April 7, 2017.

2

Of course, calendrical difficulties are no excuse to miss a court-imposed deadline.

2

IT IS FURTHER ORDERED that the parties will hereafter strictly comply with
Magistrate Judge Whalen’s December 15, 2016, scheduling order.

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: March 23, 2017
Detroit, Michigan

Certificate of Service
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF system to their respective email or First Class
U. S. Mail addresses disclosed on the Notice of Electronic Filing on March 23, 2017.

s/Teresa McGovern
Case Manager Generalist

3