Foster v. Commissioner of Social Security
Filing
37
OPINION: Plaintiff's Renewed Motion to Transfer Venue 34 is denied and this matter is dismissed for failure to prosecute and failure to comply with the Court's Orders; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
REBECCA FOSTER,
Plaintiff,
Hon. Ellen S. Carmody
v.
Case No. 1:17-cv-436
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_____________________________________/
OPINION
This matter is before the Court on Plaintiff’s Renewed Motion to Transfer Venue.
(ECF No. 34). For the reasons stated below, Plaintiff’s motion is denied and this matter is
dismissed for failure to prosecute and failure to comply with the Court’s Orders.
Plaintiff initiated the present action on May 12, 2017, challenging the denial of her
claim for Supplemental Security Income (SSI) benefits. On July 20, 2017, the Court entered a
notice directing the filing of briefs. (ECF No. 11). On August 16, 2017, Plaintiff filed a motion
to extend the briefing schedule, which the Court granted. (ECF Nos. 17, 19). On October 3,
2017, Plaintiff again requested an extension of time to file her brief, which the Court granted.
(ECF Nos. 25, 28). Plaintiff was ordered to submit her brief no later than November 14, 2017.
As of November 28, 2017, Plaintiff had still failed to submit her initial brief. Accordingly, the
Court issued to Plaintiff an Order to Show Cause directing her to show cause why this matter
should not be dismissed for failure to prosecute and failure to comply with the Court’s Orders.
(ECF No. 33).
On December 8, 2017, Plaintiff responded to the Court’s Order to Show Cause by
filing a second motion to transfer venue. Plaintiff previously moved to transfer this matter to the
Northern District of California. (ECF No. 29). The Court denied Plaintiff’s motion, observing
that “the address included in [Plaintiff’s] motion, certificate of concurrence and proof of service
all reflect Elk Rapids, Michigan. Plaintiff has failed to demonstrate that she doesn’t live within
the Western District of Michigan, thus making transfer to another district inappropriate.” (ECF
No. 32).
In her renewed motion to transfer venue, Plaintiff still has failed to demonstrate that
she does not reside within the Western District of Michigan. The address which Plaintiff has
provided to the Court, as reflected on the docket sheet, is Elk Rapids, Michigan. In both her
renewed motion to transfer venue and the accompanying certificate of concurrence, Plaintiff lists
her address as Elk Rapids, Michigan. (ECF No. 34-35). Plaintiff argues that the Court should
disregard these facts and instead focus on the location from which her pleadings were mailed.
While such facts are of questionable relevance and are certainly not dispositive, a review of the
FedEx labels reveals that Plaintiff’s renewed motion to transfer venue and certificate of
concurrence were both mailed from Williamsburg, Michigan, a small town just south of Elk
Rapids, Michigan.
Accordingly, Plaintiff’s renewed motion to transfer venue is denied as
Plaintiff has failed to establish that she does not reside in the Western District of Michigan.
In light of Plaintiff’s failure to file her brief, despite multiple extensions of time,
dismissal is appropriate.
As the United States Supreme Court long ago recognized, “[t]he
authority of a federal trial court to dismiss a plaintiff’s action with prejudice because of his failure
to prosecute cannot seriously be doubted.” Link v. Wabash Railroad Co., 370 U.S. 626, 629
(1962). This authority “is necessary in order to prevent undue delays in the disposition of pending
cases and to avoid congestion in the calendars of the District Courts.” Id. at 629-30. Failure by
a plaintiff “to prosecute or to comply with these rules or a court order” constitutes grounds to
dismiss the complaint, or any particular claims therein. See Fed. R. Civ. P. 41(b).
When examining whether dismissal under Rule 41(b) is appropriate, the Court must
consider the following factors: (1) whether the party’s failure to cooperate is due to willfulness,
bad faith, or fault; (2) whether the adversary is prejudiced by the party’s dilatory 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. See Schreiber v. Moe, 320 Fed. Appx.
312, 317-18 (6th Cir., Nov. 5, 2008) (quoting Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick,
and GMC Trucks, Inc., 173 F.3d 988, 992 (6th Cir. 1999)).
Consideration of these factors weigh in favor of dismissal. Plaintiff’s failure to
prosecute this matter is intentional. Defendant is certainly prejudiced by Plaintiff’s failure to
comply with this Court’s Orders. Finally, Plaintiff was expressly warned that failure to comply
with the Court’s Order to Show Cause and prosecute this matter could result in the dismissal of
this matter. However, because Plaintiff appears pro se, her case will be dismissed without
prejudice. Accordingly, this matter is hereby dismissed without prejudice for failure to prosecute
and comply with the Court’s Orders.
IT IS SO ORDERED.
Dated: December 28, 2017
/s/ Ellen S. Carmody
ELLEN S. CARMODY
U.S. Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?