Murdock v. Trinity Services Group et al
OPINION and ORDER Dismissing Defendant Christina Billings with Prejudice. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 17-11803
Judith E. Levy
United States District Judge
Trinity Services Group, et al,
Mag. Judge Anthony P. Patti
OPINION AND ORDER DISMISSING DEFENDANT CHRISTINA
BILLINGS WITH PREJUDICE
Plaintiff Anthony Murdock filed the complaint in this matter on
June 7, 2017. (ECF No. 1.) Defendant Christina Billings was served on
November 9, 2017. (ECF No. 17.) On February 7, 2019, Plaintiff
requested a clerk’s entry of default as to Defendant Billings because
Defendant failed to plead or otherwise defend in accordance with Federal
Rule of Civil Procedure 12. (ECF No. 42.) The clerk entered the default
on February 8, 2019. (ECF No. 43.) To this date, Plaintiff has not filed a
motion for default judgment. See Fed. R. Civ. P. 55.
On September 16, 2019, the Court ordered Plaintiff to show cause
in writing by September 30, 2019 why this case should not be dismissed
for Plaintiff’s failure to prosecute as to Defendant Billings, pursuant to
Eastern District of Michigan Local Rule 41.2. (ECF No. 47.) Plaintiff did
not file any document by September 30, 2019 and, even as of today, has
not filed anything in response to the Court’s order. Thus, Plaintiff did not
comply with the Court’s order and has not shown cause why this case
should not be dismissed with prejudice as to Defendant Billings for
failure to prosecute.
There are four factors that a district court considers in dismissing
a case for failure to prosecute.
(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.
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005). “Although
typically none of the factors is outcome dispositive . . . a case is properly
dismissed by the district court where there is a clear record of delay or
contumacious conduct.” Id. At 363.
Here, Plaintiff’s conduct constitutes a clear record of delay
supporting dismissal for failure to prosecute. Plaintiff, who has been
otherwise active in this case,1 has been completely silent as to the issue
of Defendant Billings’ default after requesting the clerk’s entry on
February 8, 2019. Plaintiff had ample time to move for default judgment,
or, following this Court’s September 16, 2019 show cause order, to
demonstrate why Plaintiff needed more time. Nevertheless, Plaintiff
neglected to pursue his case. This conduct “shows willfulness and fault
in that [Plaintiff] was at best extremely dilatory in not pursuing [his]
claim, which indicates an intention to let [his] case lapse.” Shafer v. City
of Defiance Police Dept., 529 F.3d 731, 739 (6th Cir. 2008). This factor
supports the finding that Plaintiff’s conduct amounts to a failure to
Further, this Court’s September 16, 2019 show cause order put
Plaintiff “indisputably on notice” that his claim against Defendant
Billings depended on Plaintiff’s continued activity in the case. See id. at
See, e.g., ECF No. 36 (Plaintiff’s July 31, 2018 Response to Defendants’ Motion for Summary
Judgment); ECF No. 44 (Parties’ September 3, 2019 Stipulated Order of Dismissal as to Other
740. Plaintiff had two weeks to respond and failed to do so. This “key”
factor therefore weighs heavily in favor of failure to prosecute. See id.
An additional factor in determining failure to prosecute is whether
this Court considered other lesser sanctions before dismissal. However,
the Sixth Circuit has “never held that a district court is without power to
dismiss a complaint, as the first and only sanction, solely on the basis of
the plaintiff’s counsel’s neglect” and is “loathe to require the district court
to incant a litany of the available sanctions.” Id. at 738. In this case,
dismissal with prejudice is the first sanction for failing to prosecute, but
it is also the appropriate sanction given Plaintiff’s ample notice that
failure to pursue the claim would result in dismissal.
Finally, there is no evidence that the pendency of this litigation
against Defendant Billings prejudices her or the other remaining
defendant in this case, Trinity Services Group. Though this factor leans
against dismissal, it is outweighed by Plaintiff’s marked failure to pursue
his own case as to Defendant Billings, even with the Court’s
Dismissal for failure to prosecute is available to the district court
“as a tool to effect management of its docket and avoidance of
unnecessary burdens on the tax-supported courts [and] opposing
parties.” Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999)
(internal quotations omitted). “A district court must be given substantial
discretion in serving these tasks.” Id.
Accordingly, for the reasons set forth above, the case is dismissed
with prejudice as to Defendant Billings for Plaintiff’s failure to prosecute.
IT IS SO ORDERED.
Dated: October 8, 2019
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
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