Jackson v. Pollock

Filing 70

Opinion and Order: Having concluded that all of the relevant factors favor dismissal, defendants' motion to dismiss is granted, and plaintiff's claims are dismissed with prejudice. (Related Doc # 65 , 59 ). Judge Sara Lioi on 10/16/2014. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

TERRENCE A. JACKSON,

PLAINTIFF,
vs.

[1] STERILITE CORP., et al.,
[2] DAVID STONE,
DEFENDANTS.

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[1] CASE NO. 5:13CV861
[2] CASE NO. 5:13CV862
JUDGE SARA LIOI

OPINION AND ORDER

These consolidated cases are before the Court upon defendants’ motion to
dismiss for failure to prosecute (Doc. No. 65 [“Mot.”]).1 Plaintiff opposes the motion
(Doc. No. 66 [“Opp.”]), and defendants have filed a reply (Doc. No. 67 [“Reply”]).
I. BACKGROUND
Pro se plaintiff Terrence Jackson filed these employment discrimination
lawsuits in April 2013. Both actions raised substantially similar allegations relating to
plaintiff’s brief period of employment with defendant Sterilite Corporation. (See Case
No. 5:13CV861, Doc. No. 1 [“Compl.”]; Case No. 5:13CV862, Doc. No. 1 [“Compl.”].)
On July 25, 2013, the Court sua sponte ordered the cases consolidated. (Doc. No. 6.)

1

The Court interprets the present motion to dismiss as requesting dismissal of both actions. Nonetheless,
unless otherwise specified, and for ease of discussion, all docket references are to the lead case: Case No.
5:13CV861. All page number references are to the page identification number generated by the Court’s
electronic docketing system.

From the beginning of this litigation, plaintiff has been unwilling or
unable to provide a valid address where he could receive mail, resulting in numerous
filings being returned undelivered to the Court or opposing counsel. (Doc. Nos. 8, 13, 14,
15, 16, 19, 22, 50, 52, 55, 62.) While plaintiff has, at various times, offered to the Clerk
different possible mailing addresses, filings by the Court and defendants continued to be
returned undelivered.
On November 22, 2013, the Court conducted a Case Management
Conference wherein it established dates and deadlines that were to govern these cases.
(Doc. No. 28 [“CMPTO”].) At the conclusion of the conference, the Court reminded
plaintiff that he had a duty to provide the Court with a valid address where mail could be
received. (Nov. 22, 2013 Minutes.)
On February 21, 2014, the Court conducted a status conference for the
purpose of addressing defendants’ representations that plaintiff was not participating in
discovery. (See Doc. No. 51.) The Court admonished plaintiff for failing to cooperate in
discovery, and ordered plaintiff to supply his initial disclosures (which were long
overdue) by February 28, 2014. The Court also cautioned plaintiff that any further failure
to cooperate in discovery, or otherwise make himself available to opposing counsel for
purposes of advancing the litigation, could expose plaintiff to “possible sanctions, up to
and including dismissal of this action, for failure to prosecute.” (Feb. 21, 2014 Minutes.)
Because of the delays occasioned by plaintiff’s lack of cooperation in discovery, the
Court agreed to extend many of the dates and deadlines that appeared in the CMPTO.
(Doc. No. 53 [“Am. CMPTO”].)
2

On March 14, 2014, defendants filed a motion to dismiss various claims
for failure to state a claim.2 (Doc. No. 59.) Defendants’ motion to dismiss for failure to
prosecute followed on April 16, 2014. The Court suspended all dates and deadlines in the
Am. CMPTO pending resolution of defendants’ motion to dismiss for failure to
prosecute. (May 27, 2014 Minutes.)
II. LAW AND ANALYSIS
As grounds for their motion to dismiss for lack of prosecution, defendants
highlight the following undisputed facts:


Plaintiff failed to participate in the Rule 26(f) planning meeting and
preparation and filing of joint status reports as required by the Court’s
standing order and Am. CMPTO;



Plaintiff failed to respond timely and fully to initial disclosures,
specifically failing to give any contact information regarding potential
witnesses;



Plaintiff failed to respond to any written discovery propounded by
defendants;



Plaintiff failed to serve his own discovery requests, or in any other way,
conduct discovery; and



Plaintiff failed to maintain a current address for purpose of service and
communication with opposing counsel and the Court.
Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure generally

provides that a court may impose sanctions upon a party who fails to obey an order to
provide or permit discovery. Similarly, Rule 37(d)(1)(A)(ii) provides that a court may
impose sanctions upon a party for failing to respond to interrogatories. Among the
2

Because the Court finds that these actions are properly dismissed for want of prosecution, it does not
reach the merits of defendants’ Rule 12(b)(6) motion.
3

possible sanctions a court may impose is “dismissing the action or proceeding in whole or
part . . . .” Fed. R. Civ. P. 37(b)(2)(A)(v). In addition, Rule 41(b) provides for dismissal
of actions “[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules of
Civil Procedure] or a court order. . . .” Such a dismissal acts as an adjudication on the
merits. Id. The Sixth Circuit has recognized that a Rule 41(b) dismissal “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) (quotation marks and citation omitted).
Determining whether dismissal is the appropriate sanction is a matter within the
discretion of district courts. See Wright v. Coca-Cola Bottling Co., 41 F. App’x 795 (6th
Cir. 2002).
The Sixth Circuit has instructed courts to assess four factors in
determining whether dismissal for failure to prosecute or failure to comply with
discovery obligations is warranted: (1) whether the party’s failure was the result of
willfulness, bad faith, or fault; (2) whether the opposing party suffered prejudice due to
the party’s conduct; (3) whether the party was warned that failure to cooperate could lead
to dismissal; and (4) whether less drastic sanctions were imposed or considered. Mulbah
v. Detroit Bd. of Educ., 261 F.3d 586, 589 (6th Cir. 2001) (citations omitted); Harmon v.
CSX Transp. Inc., 110 F.3d 364, 366-37 (6th Cir. 1997) (quotation marks and citation
omitted).
With respect to the first factor, the burden of showing that a failure to
comply with court orders and discovery requests was due to inability, not willfulness or
4

bad faith, rests with the individual against whom sanctions are sought. United States v.
Reyes, 307 F.3d 451, 458 (6th Cir. 2002) (citation omitted). “Thus, it is presumed that
dismissal is not an abuse of discretion if the party has the ability to comply with a
discovery order but does not.” Id.; see, e.g., United Steelworkers, Local 1-1000 v.
Forestply Indus., Inc., No. 2:08-CV-281, 2011 WL 1210132, at *7 (W.D. Mich. Apr. 1,
2011) (defendants “had the ability to comply with the plaintiff’s requests for discovery
and comply [with] the Court’s discovery orders but they chose not to do so without good
reason and without justification”).
Plaintiff has offered no justification for his failure to participate in the
Rule 26(f) planning meeting or the preparation of periodic joint status reports. As for his
failure to respond to defendants’ propounded discovery, plaintiff relies on his pro se
status and unsubstantiated allegations that defendants have harassed him. (Opp. at 305.)
He also complains that two of his former attorneys, both of which he dismissed,
attempted to “sabotage [his] case from the inside” to justify his failure to prosecute this
action. (Id.) The record shows, however, that plaintiff never requested additional time
from the Court or opposing counsel to respond to discovery or to meet his other litigation
obligations.3
The Court is mindful that plaintiff is proceeding pro se, and, it is for this
reason that the Court has exercised considerable patience in dealing with plaintiff and the
delays his dilatory action has caused. Nonetheless, the Court’s patience is not without
3

In fact, in response to defense counsel’s request to supplement his initial disclosures, plaintiff merely
stated “OK. No problem.” (Doc. No. 65-4 at 300-01.) In his opposition, filed April 18, 2014, plaintiff
suggests that he is in the process of the gathering the information requested by opposing counsel. (Opp. at
307.) More than six months later, however, plaintiff has still failed to respond to discovery requests.
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limit, and plaintiff’s pro se status does not “excuse [him] from producing discovery.”
Ward v. Am. Pizza Co., 279 F.R.D. 45l, 458 (S.D. Ohio 2012) (collecting cases and
quoting Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991) (“while pro se litigants may
be entitled to some latitude when dealing with sophisticated legal issues, acknowledging
their lack of formal training, there is no cause for extending this margin to
straightforward procedural requirements that a layperson can comprehend as easily as a
lawyer”)); Fields v. Cnty. of Lapeer, No. 99-2191, 2000 WL 1720727, at *2 (6th Cir.
Nov. 8, 2000) (“it is incumbent on litigants, even those proceeding pro se, to follow . . .
rules of procedure”) (quoting Bradenburg v. Beaman, 632 F.2d 120, 122 (10th Cir.
1980)) (quotation marks omitted).
Plaintiff has caused two lawsuits to be filed, yet he has neglected to take
any action to advance these suits. He has failed to comply with even the most basic and
fundamental procedural rules. Plaintiff’s complete failure to participate in discovery can
only be construed as demonstrating bad faith and/or willful intent to unduly delay
resolution of these actions. See, e.g., Robinson v. Gen. Motors Corp., No. 4:12CV1604,
2013 WL 999598, at *3 (N.D. Ohio Mar. 13, 2013) (citing a pro se plaintiff’s failure to
participate in the submission of joint status reports as ordered by the court, and failure to
respond to discovery, as evidence of willfulness and fault); Eddins v. Dep’t of Ohio VFW,
No. 1:12CV48, 2012 WL 1987162, at *1 (S.D. Ohio June 4, 2012) (recommending
dismissal of a pro se case for failure to prosecute when the plaintiff failed to meet and
confer on a joint Rule 26(f) order and failed to answer the subsequent “show cause”
order); Carr v. Miami Cnty. Jail, No. 3:05CV387, 2006 WL 2987823 (S.D. Ohio Oct. 17,
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2006) (recommending dismissal of pro se plaintiff’s case due to plaintiff’s failure to
participate in discovery, failure to answer interrogatories, and failure to respond to a
request to schedule a deposition); see also Bentkowski v. Scene Magazine, 637 F.3d 689,
697 (6th Cir. 2011) (identifying failure to provide initial disclosures as sanctionable
conduct). Additionally, the Court notes that plaintiff has failed to serve any discovery
requests of his own, “hurting his own case and demonstrating his failure to prosecute.”
See Fite v. Canton Drop Forge, Inc., No. 5:07-CV-446, 2007 WL 335551, at *2 (N.D.
Ohio Nov. 7, 2007). The first factor weighs strongly in favor of dismissal.
There can be no question that this unwillingness to participate in litigation
has resulted in prejudice to defendants, as they have been required to waste valuable time
and resources attempting to get plaintiff to meet his discovery obligations. See, e.g.,
Harmon, 110 F.3d at 368 (“We have no doubt that [defendant] was prejudiced by
[plaintiff’s] failure to respond to its interrogatories. Not only had [defendant] been unable
to secure the information requested, but it was also required to waste time, money, and
effort in pursuit of cooperation which [plaintiff] was legally obligated to provide.”);
Robinson, 2013 WL 999598, at *3 (noting that a defendant may be “prejudiced by its
waste of time, money, and effort in attempting to get plaintiff to meet her discovery
obligations and by having to defend a case in which plaintiff refuses to meaningfully
participate”). Plaintiff’s dilatory tactics have also caused significant delays in these
proceedings—prompting the Court to revise its dates and deadlines—and have interfered
with defendants’ ability to prepare for summary judgment and/or trial.

7

Likewise, plaintiff’s inability to supply the Court and opposing counsel
with a valid mailing address has substantially prejudiced defendants. Not only has it
impaired counsel’s ability to communicate with plaintiff for purposes of scheduling
depositions and preparing joint status reports, it has caused defendants to expend
unnecessary effort and resources. For example, on November 15, 2013, plaintiff filed a
motion for default judgment, notwithstanding the fact that defendants had timely
answered the complaint. (Doc. No. 11; see Doc. Nos. 5, 9.) Of course, because the
mailing address plaintiff supplied the Court and opposing counsel was invalid, plaintiff
never received the service copies that would have informed him that defendants had
timely responded to the complaint. Defendants were required to devote time and money
responding to this frivolous motion.4 (Doc. No. 12.) The second factor weighs in favor of
dismissal.
Plaintiff was warned that his failure to prosecute could lead to the
dismissal of these actions.5 (Feb. 21, 2014 Minutes.) In addition to the Court’s warning at
the February 21, 2014 status conference, plaintiff was on notice as of the filing of
defendants’ Rule 41(b) motion that his inattention to these cases could result in dismissal.
Yet, his mail continues to be returned as undeliverable, and he persists in his pattern of
refusing to cooperate with opposing counsel in the preparation of joint status reports. (See

4

The Court also required defendants to document their unsuccessful attempts to serve plaintiff by mail with
filings in this case. (See, e.g., Doc. Nos. 15, 50, 52.)
5

It is true that plaintiff was initially cautioned that his failure to provide the Court with a valid mailing
address could result in dismissal without prejudice. This was, however, early in the litigation, before
plaintiff’s inaction began to prejudice defendants and delay these proceedings.
8

Doc. Nos. 68, 69.) This final factor also weighs in favor of dismissal.6
As for the consideration of lesser sanctions, the admonishment plaintiff
received earlier in the proceedings did not have any effect on plaintiff’s conduct.
Moreover, the Court doubts whether monetary sanctions would be effective inasmuch as
plaintiff has previously represented that he lacks any financial resources. (See Doc. No.
20.) The Court has considered lesser sanctions but concludes that nothing short of
dismissal with prejudice would be appropriate. This final factor also weighs in favor of
dismissal.
III. CONCLUSION
Having concluded that all of the relevant factors favor dismissal,
defendants’ motion to dismiss is granted, and plaintiff’s claims are dismissed with
prejudice.
IT IS SO ORDERED.

Dated: October 16, 2014
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

6

Of course, even if plaintiff had not previously been cautioned, the extreme circumstances of these cases
would still warrant involuntary dismissal. The Sixth Circuit has emphasized that no one factor in the
analysis is dispositive, and, as such, prior warnings are not indispensable. See Reyes, 307 F.3d at 458; see
also Link v. Wabash R. Co., 370 U.S. 626, 632, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) (the “absence of
notice as to the possibility of dismissal” does not “necessarily render such a dismissal void”). This is
especially true where, as here, the Court has made specific findings of bad faith. Cf. Stough v. Mayville
Cmty. Sch., 138 F.3d 612, 615 (6th Cir. 1998) (dismissal for failing to timely respond to summary judgment
was too harsh a sanction where there was no prior warning that such conduct was subject to dismissal, and
the district court made no finding of bad faith); see, e.g., Mitchell v. Tri-Health, Inc., Civil No. 11-318HJW-JGW, 2012 WL 2190809, at *2 (S.D. Ohio June 14, 2012) (dismissing pro se complaint under Rule
41(b), even though no prior warning was issued, where plaintiff had failed to “meaningfully participate in
[the] action”) (citation omitted).
9