Faris v. J.C. Penney Corporation, Inc. et al

Filing 23

Memorandum Opinion and Order: The Court is of the view that plaintiff should be permitted to voluntarily dismiss her case without prejudice under Rule 41(a)(2), which permits "dismiss[al] at plaintiff's request only by court order, o n terms that the court considers proper." (emphasis added). The proper terms are that, should the case be refiled, plaintiff shall pay the reasonable attorney fees incurred with respect to the unanswered discovery served in this proceeding. In view of the above, the status conference currently set for October 16, 2015 is canceled and all other case management deadlines are vacated. (Related Doc # 18 ). Judge Sara Lioi on 10/15/2015. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ZIENA O. FARIS,

PLAINTIFF,
vs.
J.C. PENNEY CORPORATION, INC., et
al.,
DEFENDANTS.

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CASE NO. 5:15-cv-575

JUDGE SARA LIOI

MEMORANDUM OPINION
AND ORDER

On September 8, 2015, plaintiff unilaterally filed a Notice of Dismissal (Doc. No.
18) purporting to dismiss this action pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). Defendant J.C.
Penney1 filed its opposition, arguing that the notice was improper because J.C. Penney has
already filed its answer, and further requesting that any dismissal be with prejudice for failure to
prosecute. (Doc. No. 19.) At the Court’s direction, plaintiff filed a reply (Doc. No. 21),
withdrawing her admittedly out-of-rule notice of dismissal, and moving for either dismissal
without prejudice or, in the alternative, for an extension of the case management deadlines to
permit time to obtain medical records relating to treatment allegedly obtained by plaintiff in the
Kingdom of Jordan, where her family lives.2 J.C. Penney opposed either form of the relief sought
by plaintiff. (Doc. No. 22.)
There is now no dispute that Rule 41 does not permit plaintiff to unilaterally
dismiss her complaint. The questions now before this Court are whether the case should proceed
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J.C. Penney is the sole defendant. Jane Doe and John Doe defendants named in the complaint have never been
identified or served.
2

Plaintiff herself is a United States citizen who currently lives in Akron, Ohio, with her husband and children. (Doc.
No. 1 [“Compl.”] ¶¶ 8-9.)

with an extended Case Management Plan, or should be dismissed, and, if so, whether the
dismissal should be with or without prejudice.
DISCUSSION
Plaintiff initiated this action on February 20, 2015 by filing her complaint in the
Summit County Court of Common Pleas, asserting claims of malicious prosecution; false arrest
and false imprisonment; libel; defamation; slander; intentional infliction of emotional distress;
violation of constitutional and civil rights; and civil liability for criminal conduct.3 Defendant
timely removed the action to this Court on March 24, 2015, and subsequently filed its answer on
April 21, 2015.
On June 4, 2015, the Court conducted the Case Management Conference. On the
same day, it issued the Case Management Plan and Trial Order (Doc. No. 14), setting various
deadlines, including a non-expert discovery deadline of October 5, 2015 and a dispositive motion
deadline of October 30, 2015.
On July 10, 2015, defendant served its first request for written discovery,
including interrogatories, request for production of documents, and request for admissions, with
a response date of August 10, 2015. (See Doc. No. 15.) At the same time, defendant requested
dates for plaintiff’s deposition in mid-August. Plaintiff failed to timely respond to the discovery

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All of plaintiff’s claims are based upon an incident that occurred on February 20, 2014 while she was shopping
with her children and another relative in the J.C. Penney store at Chapel Hill Mall in Akron, Ohio. (Compl. ¶ 10.)
Plaintiff, who wears a hijab indicating her Muslim faith, alleges she saw a pair of shoes on a clearance rack that she
thought would fit one of her children. (Id. ¶¶ 12-13.) While she was looking at the shoes, a strange man came in
close proximity, making her feel uncomfortable. She moved away from him towards the store entrance, but he
followed. (Id. ¶¶ 15-16.) Shortly thereafter, the man identified himself as store security and asked her to come with
him. (Id. ¶ 21.) Despite her questioning the reason, she was taken to a back room, where she was detained and not
permitted to phone her husband, while the security officer and a female employee began rummaging through her
bags and ordering her to supply receipts. She complied. (Id. ¶¶ 22-31.) She also alleges that she was forced to sign a
notice indicating that she was banned from the entire mall for a period of one year. (Id. ¶¶ 38-39.) She was
eventually charged with theft, but the charges were dismissed when J.C. Penney failed to appear for the relevant
court proceedings in Akron Municipal Court. (Id. ¶¶ 40-48.)

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and, at her counsel’s request made on August 11, 2015, defendant’s counsel agreed to extend the
response date to August 31, 2015. (Doc. No. 19 at 115.)4 No responses were ever supplied and,
on September 4, 2015, defendant’s counsel inquired by way of an email to plaintiff’s counsel as
to the status of the responses. (See Doc. No. 19-1.) To date, there has been no response from
plaintiff.5 Instead, on September 8, 2015, plaintiff filed the ineffective notice of dismissal.
Defendant now argues that plaintiff’s request to dismiss without prejudice or,
alternatively, to extend the case management deadlines, should be denied due to plaintiff’s
complete failure to prosecute. Defendant asserts that it “has been forced to waste time, money
and effort in defense of Plaintiff’s numerous factually and legally deficient claims while Plaintiff
has not provided any evidence in support [of] these claims.” (Doc. No. 19 at 117-18.) Defendant
further argues that plaintiff’s “excuse [relating to the need to obtain medical records from
Jordan] has never been raised before the Court prior to this point.” (Doc. No. 22 at 125.) In
addition, defendant notes that this excuse does not explain plaintiff’s failure to respond to
defendant’s discovery requests relating to liability, in particular, its request for an explanation for
the acknowledgement of theft that plaintiff signed on February 20, 2014.6 As correctly argued by
defendant, any medical records would “have no bearing on J.C. Penney’s liability as set forth in
Plaintiff’s Complaint and for which the Plaintiff has the burden of proof.” (Id. at 126.)
Fed. R. Civ. P. 41(b) permits involuntary dismissal of a complaint with prejudice
for failure “to prosecute or to comply with these rules or a court order[.]” Dismissal under Rule
41(b) must take into consideration four factors: “(1) whether the party’s failure to cooperate is
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All page number references are to the page identification number generated by the Court’s electronic docketing
system.
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Hearing nothing from plaintiff regarding possible deposition dates, on August 27, 2015 defendant filed a notice to
take plaintiff’s videotape deposition on September 16, 2015. (See Doc. No. 17.)
6

This “Acknowledgement” [sic] is attached to the answer. (See Doc. No. 7-1.)

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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 in advance about the possibility of
dismissal for noncompliance or non-cooperation; and (4) whether less drastic sanctions were
imposed or contemplated before the order of dismissal.” Prime Finish, LLC v. ITW Deltar IPAC,
608 F. App’x 310, 314 (6th Cir. 2015) (citation omitted). “Prior decisions of [the Sixth Circuit]
have often treated the first factor as the most important consideration[.]” Id. Typically, “a
dismissal with prejudice under Rule 41(b) is warranted only when a clear record of delay or
contumacious conduct by the plaintiff exists … and a lesser sanction would not better serve the
interest of justice.” Pope v. Memphis Police Dept., No. 84-5512, 1985 WL 13229, at * 1 (6th Cir.
April 4, 1985) (quotation marks and internal citations omitted; alteration in original).
Here, although plaintiff has not been diligent, and although the reason supplied
for her failure to prosecute is not compelling (i.e., the need to obtain and translate medical
records from a foreign country – especially since such records would not support plaintiff’s
burden with respect to liability), given that this case has been pending for only about eight
months, defendant has not been, and will not be, unduly prejudiced by dismissal.
The Court is of the view that plaintiff should be permitted to voluntarily dismiss
her case without prejudice under Rule 41(a)(2), which permits “dismiss[al] at plaintiff’s request
only by court order, on terms that the court considers proper.” (emphasis added). The proper
terms are that, should the case be refiled, plaintiff shall pay the reasonable attorney fees incurred
with respect to the unanswered discovery served in this proceeding.

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In view of the above, the status conference currently set for October 16, 2015 is
canceled and all other case management deadlines are vacated.

IT IS SO ORDERED.

Dated: October 15, 2015
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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