Craddock II v. Midland Credit Management, Inc.
Filing
17
Memorandum Opinion and Order: The Court adopts the Report and Recommendation of Magistrate Judge Limbert (Doc. No. 15 ) and dismisses with prejudice all of plaintiff's claims and cases. Judge Sara Lioi on 10/18/2011. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KENNETH M. CRADDOCK, II,
Plaintiff,
vs.
MIDLAND CREDIT
MANAGEMENT, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
CASE NOs. 5:11CV1282;
5:11CV1283; 5:11CV1284;
5:11CV1736
JUDGE SARA LIOI
MEMORANDUM OPINION &
ORDER
Before the Court is the Report and Recommendation (“R&R”)1 of Magistrate
Judge George J. Limbert filed in the above captioned cases on September 28, 2011, which
recommends dismissal of the pro se plaintiff Kenneth M. Craddock (“plaintiff”)’s actions with
prejudice due to his repeated failures to appear at proceedings before the Court. In addition,
before the Court is defendant Midland Credit Management, Inc. (“defendant”)’s response2 to the
Court’s show cause orders3 of September 16, 2011. Plaintiff has not filed objections to the R&R,
nor has he filed a response to the Court’s show cause orders. For the reasons that follow, the
R&R is ACCEPTED and the complaints in these actions are DISMISSED WITH
PREJUDICE.
Plaintiff filed the instant actions in the small claims division of the Wayne County
Municipal Court, in Orrville, Ohio, seeking damages for alleged violations of the Fair Debt
1
Doc. 15 in cases 5:11CV1282; 5:11CV1283; and 5:11CV1284. Doc. 13 in case 5:11CV1736.
Doc. 16 in case 5:11CV1282; 5:11CV1283; and 5:11CV1284. Doc. 14 in case 5:11CV1736.
3
Doc. 14 in cases 5:11CV1282; 5:11CV1283; and 5:11CV1284. Doc. 12 in case 5:11CV1736.
1
2
Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p. Defendant removed the actions to
this Court on the basis of original federal question jurisdiction pursuant to 28 U.S.C. § 1331.
On August 24, 2011, the Court was prepared to hold a scheduled Case
Management Conference (“CMC”). An hour before the CMC was to occur, plaintiff phoned the
Court to say that he would not be attending. The Court immediately arranged a telephone
conference with plaintiff and counsel for defendant (who was already en route to the CMC) and
explained to plaintiff that it was unacceptable for him not to appear for the CMC and other Court
hearings. The Court admonished plaintiff for his failure to appear and advised him that the
further failure to appear at scheduled hearings would result in sanctions up to and including
dismissal of all of his pending claims and cases. The Court rescheduled the CMC for September
16, 2011. Additionally, the Court instructed the parties to consider mediation, and they were
given a deadline of August 26, 2011 to communicate their decision to the Court.
On September 12, 2011, upon agreement of the parties, the Court referred these
matters to Magistrate Judge Limbert for mediation. On September 13, 2011, Magistrate Judge
Limbert issued an order scheduling the mediation for September 28, 2011. The scheduling order
directed the parties to submit mediation statements one week in advance of the mediation,
however, plaintiff did not do so.
On September 16, 2011, the Court was prepared to hold the previously
rescheduled CMC; however, both parties failed to appear. That same day, the Court issued an
order, requiring plaintiff to show cause in writing on or before October 7, 2011, explaining why
he failed to appear for the rescheduled CMC, why the Court should not sanction him for that
failure, and why his cases should not be dismissed for want of prosecution. The Court warned
2
plaintiff that the failure to show good cause could result in the imposition of sanctions, up to and
including dismissal. Additionally, the Court ordered defendant to show cause in writing on or
before October 7, 2011, as to why the Court should not admonish defendant for its failure to
appear at the rescheduled CMC.
On September 28, 2011, Magistrate Judge Limbert was prepared to conduct the
scheduled mediation, however, once again plaintiff failed to appear. The Court attempted to
contact plaintiff by phone, but there was no answer at his residence. The Court’s courtroom
deputy left a voice mail message for plaintiff, yet plaintiff never returned the call.
The very same day, the Magistrate Judge filed an R&R recommending that the
Court involuntarily dismiss plaintiffs’ actions pursuant to Fed. R. Civ. P. 16(f), Fed. R. Civ. P.
41(b), and the Court’s inherent sanction power. The R&R recommends that involuntary
dismissal is warranted in this case due to plaintiffs’ failure to appear for three scheduled hearings
before the Court, his willful disregard for the Court’s orders, and his failure to heed the Court’s
warnings that his claims could be dismissed as a result. In his R&R, the Magistrate Judge
informed plaintiff that, under the Federal Rules, he had fourteen days to file with the Court any
objections to his R&R. Fed. R. Civ. P. 72(b)(2).
On October 7, 2011, defendant filed its response to the Court’s show cause order.
Having reviewed defendant’s response to the order, the Court is satisfied with Counsel’s
explanation. Accordingly, the Court will not admonish defendant for its failure to appear at the
rescheduled CMC. The Court, however, reminds counsel for defendant to pay closer attention to
its orders and directives in the future.
3
Plaintiff, on the other hand, has not filed either a response to the Court’s show
cause order or objections to the R&R. The R&R was filed on September 28, 2011 and was
mailed to plaintiff on September 29, 2011. Under the relevant statute:
Within fourteen days after being served with a copy, any party may serve and file
written objections to such proposed findings and recommendations as provided by
rules of court. A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to
which objection is made […].
28 U.S.C. ' 636(b)(1)(C). Under Fed. R. Civ. P. 6(d), and additional three days are added when
computing service. Therefore, objections were not due until October 16, 2011, which fell on a
Sunday. Under Rule 6(a)(1)(C), that extended the filing deadline to October 17, 2011. No
objections were filed on or before the deadline.
The failure to file written objections to a Magistrate Judge’s R&R constitutes a
waiver of a de novo determination by the district court of an issue covered in the report. Thomas
v. Arn, 728 F.2d 813 (6th Cir. 1984), aff’d, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111
(1986); see United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The Court has reviewed the
R&R and ACCEPTS the same.
Mr. Craddock has exhibited a complete disregard for the rules established for
orderly case management. He has caused a lawsuit to be filed, yet has since failed to comply
with even the most fundamental procedural rules. Specifically, he failed to attend the initial
CMC, he failed to attend the rescheduled CMC, he failed to present a position statement to the
Magistrate Judge, he failed to attend the mediation before the Magistrate Judge, and he has failed
to respond to this Court’s show cause order. In the process, he has wasted valuable Court
resources and has prevented the Court from properly administering this case. Defendant has been
4
prejudiced by having to defend cases in which the plaintiff (Mr. Craddock) refuses to
meaningfully participate. Further, he was given prior written notice that his failure to participate
could result in sanctions up to and including dismissal of his claims. The Court finds that
sanctions short of dismissal would not cure plaintiff’s abject failure to comply with Court rules
and orders, which has resulted in his failure to prosecute properly this case. See Moreno v.
Medtronic Sofamor Danek, No. 06-2165, 2007 U.S. Dist. LEXIS 52115 (W.D. Tenn. July 18,
2007) (applying the Sixth Circuit standard and dismissing a case where pro se plaintiff failed to
respond to motion for summary judgment and failed to respond to show cause order); Johnson v.
Schnelz, No. 04-74930, 2006 U.S. Dist. LEXIS 10202, at *10 (E.D. Mich. Feb. 24, 2006)
(applying Sixth Circuit standard enumerated in prior order and dismissing case after pro se
Plaintiff failed to respond to show cause order). Accordingly, the Court hereby DISMISSES
WITH PREJUDICE all of plaintiff’s claims and cases.
IT IS SO ORDERED.
Dated: October 18, 2011
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
5
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?