Flint v. Infustion Brands, Inc. et al

Filing 18

MEMORANDUM OPINION and ORDER Dismissing Case with Prejudice for Failure to Prosecute - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Daniel C Flint,
Plaintiff,
v.

Case No. 16-cv-11093
Judith E. Levy
United States District Judge

Infustion Brands, Inc.,
Mag. Judge Anthony P. Patti
Defendant.
________________________________/
OPINION AND ORDER DISMISSING CASE WITH PREJUDICE
FOR FAILURE TO PROSECUTE
Plaintiff filed a complaint on March 25, 2016. (Dkt. 1.) He filed a
motion for default on December 7, 2016, which the Court denied for
failure to follow proper procedure. (Dkt. 16.) On March 22, 2017, the
Court ordered plaintiff to show cause why the Case should not be
dismissed for failure to prosecute, since there had been no activity in
the case. (Dkt. 17.) Plaintiff was to respond by April 5, 2017. (Id.)
Under Rule 41(b) of the Federal Rules of Civil Procedure, “[i]f 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,”

and “[u]nless the dismissal order states otherwise, a dismissal under
this subdivision (b) . . . operates as an adjudication on the merits.” Fed.
R. Civ. P. 41(b). Under Local Rule 41.2, “when . . . the parties have
taken no action for a reasonable time, the court may, on its own motion
after reasonable notice or on application of a party, enter an order
dismissing or remanding the case unless good cause is shown.” E. D.
Mich. LR 41.2.
“Prior notice, or the lack thereof, is [] a key consideration when
determining whether a district court abuses its discretion in dismissing
a case pursuant to Rule 41(b).” Stough v. Mayville Cmty. Sch., 138 F.3d
612, 615 (6th Cir. 1998). It has been nearly two weeks since the
deadline to respond to the Court’s show-cause order, and plaintiff still
has not responded. Plaintiff has had more than ample time but failed
to proceed. Kemp v. Robinson, 262 F. App’x 687, 692 (6th Cir. 2007)
(district court may give fair warning by “issu[ing] a show-cause order
requiring [plaintiff] to explain why his case should not be dismissed
with prejudice for failing to move for default judgment”).

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Accordingly, pursuant to Fed. R. Civ. P. 41(b) and E. D. Mich. LR.
41.2, this case is DISMISSED WITH PREJUDICE for failure to
prosecute.
IT IS SO ORDERED.
Dated: April 25, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

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 April 25, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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