Hill et al v. Highland Park, City of et al

Filing 31

ORDER Granting 26 MOTION for Sanctions filed by Ronald Dupuis; and DISMISSING CASE, Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KERA E. HILL and RIHANNA
M. TURNER,
Plaintiffs,
Case No. 15-11378
v.
Hon. John Corbett O’Meara
CITY OF HIGHLAND PARK, et al.,
Defendants.
_______________________________/

ORDER GRANTING DEFENDANT’S MOTION
FOR SANCTIONS AND DISMISSING COMPLAINT
FOR FAILURE TO PROSECUTE
Before the court is Defendant Ronald Dupuis’s motion for sanctions, filed
February 17, 2016. After Plaintiffs failed to file a response, the court issued an
order to show cause why this case should not be dismissed as a result of Plaintiffs’
failure to cooperate in discovery or prosecute this action. Plaintiffs submitted a
response to the order to show cause on March 18, 2016. Defendant filed a reply
brief on March 23, 2016.
Defendant contends that he has diligently pursued discovery in this matter,
beginning with the service of interrogatories and document requests on May 19,
2015. Plaintiffs did not respond to Defendant’s discovery requests. Defendant

also scheduled Plaintiffs’ depositions in July, September, October, and December
2015. Each time, the depositions were cancelled because Plaintiffs were
unavailable.
On December 22, 2015, Plaintiffs’ counsel, Robert Morris filed a motion to
withdraw. The court granted the motion in January 8, 2016, and allowed Plaintiffs
30 days to obtain a new attorney. Plaintiffs did not obtain new counsel within 30
days or at any time thereafter.
Defendant filed a motion for sanctions on February 17, 2016, arguing that
this action should be dismissed as a result of Plaintiffs’ failure to cooperate in
discovery, obtain an attorney, or otherwise prosecute this case. The court issued a
notice that Plaintiffs’ response was due March 7, 2016. When Plaintiffs failed to
file a timely response, the court issued an order to show cause, warning that it was
considering dismissing the action with prejudice.
Plaintiff Kera Hill submitted response to the order to show cause on March
18, 2016, stating that “due to the misguidance of our former counsel . . . we were
never made aware of those dates that we missed.” However, Plaintiffs attached an
email from their attorney dated November 26, 2015, indicating that “I have to get
responses to these interrogatories to the defense attorney by mid next week or they
will file a motion to throw the case out.” Despite this warning from their counsel,
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Plaintiffs have done nothing whatsoever to answer Defendant’s discovery requests
or otherwise cooperate with discovery. In addition, in the five months since their
attorney was permitted to withdraw, Plaintiffs have taken no steps to prosecute this
matter on their own behalf or to obtain new counsel.
Pursuant to Federal Rule of Civil Procedure 41 and Local Rule 41.2, the
court may dismiss an action for failure to prosecute. In determining whether to
dismiss for failure to prosecute, the court considers the following factors: “(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 of
the action.” Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 589 (6th Cir. 2001)
“While none of these factors is dispositive, a case may be dismissed by a district
court where there is a clear record of delay or contumacious conduct on the part of
the plaintiff.” Id. at 591.
Here, Plaintiffs have demonstrated a “reckless disregard of the effect of
[their] conduct” on these proceedings, satisfying the first factor. See id. Plaintiffs
have made no effort to participate in discovery or otherwise prosecute this case. It
is clear from the record that fault lies with Plaintiffs themselves, who were
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informed by their former counsel in November 2015 that they needed to answer
Defendant’s discovery requests or Defendant would “file a motion to throw the
case out.” Plaintiffs have been given ample time to either prosecute this action
themselves or to obtain counsel. They have done neither.
Regarding the second factor, Defendant has been prejudiced by Plaintiff’s
conduct, in that he has wasted “time, money, and effort in pursuit of cooperation
which [Plaintiffs were] legally obligated to provide.” Harmon v. CSX Transp.,
Inc., 110 F.3d 364, 368 (6th Cir. 1997).
As for the third factor, Plaintiffs were on notice that the court was
contemplating dismissal, given Defendant’s motion (to which Plaintiffs failed to
respond) and the court’s show cause order.
As for the fourth factor, the court has considered less drastic sanctions than
dismissal, such as monetary sanctions. In light of Plaintiffs’ clear pattern of delay
and virtual abandonment of this case, however, it does not appear to the court that
less drastic sanctions would serve to protect the integrity of the judicial process.
See Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991) (“Although this court
prefers that claims be adjudicated on their merits, dismissal is appropriate when a
pro se litigant has engaged in a clear pattern of delay.”).

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ORDER
Accordingly, IT IS HEREBY ORDERED that Defendant’s motion for
sanction is GRANTED and this action is DISMISSED WITH PREJUDICE.

s/John Corbett O’Meara
United States District Judge

Date: June 1, 2016

I hereby certify that a copy of the foregoing document was served upon the
parties of record on this date, June 1, 2016, using the ECF system and/or ordinary
mail.

s/William Barkholz
Case Manager

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