Local 109 Board of Trustees of the Operative Plasterers and Cement Masons Pension Fund v. All American Acoustic and Drywall, Inc.
Memorandum Opinion and Order: Defendant's motion to dismiss pursuant to Fed. R. Civ. P. 41(b) is denied. (Doc. No. 25 .) The Court will issue an amended case management plan by separate order, which will include a revised date by which p laintiff must file the administrative record. Plaintiff is advised that the administrative record must be separately (and timely) filed; plaintiff may not simply refer to previously filed documents to satisfy this obligation. Failure of plaintiff to comply with Court orders or to meet case deadlines may result in sanctions, up to and including dismissal. Given that the Court will established new case management deadlines, plaintiff's motion for a second case management conference is denied. (Doc. No. 27 .) Judge Sara Lioi on 7/20/2017. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
LOCAL 109 BOARD OF TRUSTEES
OF THE OPERATIVE PLASTERERS
AND CEMENT MASONS PENSION
ALL AMERICAN ACOUSTIC AND
CASE NO. 5:15-cv-2361
JUDGE SARA LIOI
MEMORANDUM OPINION AND
Presently before the Court is the motion of defendant All American Acoustic and
Drywall, Inc. to dismiss the complaint of plaintiff Local 109 Board of Trustees of the
Operative Plasterers and Cement Masons Pension Fund pursuant to Fed. R. Civ. P. 41(b)
for failure to timely file the administrative record in accordance with the Court’s case
management plan. (Doc. No. 25 [“Mot.”].) Plaintiff opposed the motion and moves the
Court to conduct a second case management conference. (Doc. No. 27 [“Opp’n”].)
Defendant filed a reply in support of its motion. (Doc. No. 28 [“Reply”].)
For the reasons that follow, defendant’s motion is denied.
The Court previously conducted a case management conference and issued a case
management plan. (Doc. No. 16 [“CMP”].) The CMP required plaintiff to file the
administrative record by August 12, 2016.
When the CMP was issued, the parties’ two-part cross-motions for judgment were
not yet ripe. (See Doc. Nos. 12 and 17.) After the extensive briefing was completed,1 the
Court issued its ruling on September 22, 2016. In that ruling, the Court denied without
prejudice both motions for judgment on the pleadings, and granted plaintiff an
opportunity to avoid dismissal of its complaint by filing an amended complaint within 14
days. (See Doc. No. 24 at 245.2) Before plaintiff timely filed its amended complaint (Doc.
No. 26), defendant filed the instant motion.
Defendant argues that the case should be dismissed with prejudice because
plaintiff did not file the administrative record by August 12, 2016, in compliance the
Court’s CMP. Plaintiff does not dispute that it did not, and has not, filed the
administrative record. Plaintiff argues that the case should not be dismissed, however,
because: (1) since the parties’ dispositive motions were pending when the administrative
record was due to be filed, “it seemed reasonable at the time” to wait for the Court to rule
on the dispositive motions before incurring the expense of compiling and filing the
administrative record with the Court; and (2) a rule 41(b) dismissal at this stage of the
litigation would be unwarranted and premature. (Opp’n at 331-32.) Plaintiff also points
out that defendant did not object to plaintiff’s failure to file the administrative record by
August 22, 2016, the deadline set by the CMP for defendant’s objections to the CMP.
Moreover, plaintiff claims that “there is not much else Plaintiff can provide as part of the
administrative record other than what the Court already has[,]” referring to assessment
letters and calculations already filed with the original complaint. (Id. at 334.) In reply,
See Doc. Nos. 18, 20, 21, 22, and 23.
All references to page numbers are to the page identification numbers generated by the Court’s electronic
defendant argues that plaintiff’s failure to comply with the CMP was willful and not due
to inability or mistake, and dismissal is appropriate, citing in support Triplett v. United
States, No. C2-95-1192, 1997 WL 842418, at *1 (S.D. Ohio Dec. 29, 1997).3 (Reply at
1. Fed. R. Civ. P. 41(b)
Fed. R. Civ. P. 41(b) provides that:
(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may move to dismiss
the action or any claim against it. Unless the dismissal order states
otherwise, a dismissal under this subdivision (b) and any dismissal not
under this rule--except one for lack of jurisdiction, improper venue, or
failure to join a party under Rule 19--operates as an adjudication on the
The Court consider four factors when deciding whether to dismiss an action under
‘(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.’
Jarmon v. Intuitive Surgical, Inc., No. 3:15-CV-00334-CRS-DW, 2017 WL 939325, at
*1 (W.D. Ky. Mar. 9, 2017) (quoting Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363
(6th Cir. 1999)); Carthon v. Cent. State Univ., 290 F.R.D. 83, 87 (S.D. Ohio 2013)
(same) (citing Knoll, 176 F.3d at 363); Komaromy v. City of Cleveland, 232 F.R.D. 590,
Triplett is distinguishable from the facts in this case. Unlike here, Triplett repeatedly refused to follow the
court’s order, failed to explain his non-compliance, and engaged in a clear pattern of delay. Triplett, 1997
WL 842418, at *3 (“Despite various warnings, plaintiff has repeatedly indicated a desire not to prosecute
this action with diligence and therefore dismissal is appropriate under Rule 41(b).”).
592 (N.D. Ohio 2006) (same) (citing Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 589
(6th Cir. 2001)).
“‘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.’” Carthon, 290 F.R.D. at 87 (quoting Knoll, 176 F.3d at 363).
With respect to the first factor, “[t]o support a finding that a plaintiff’s actions were
motivated by willfulness, bad faith, or fault under the first factor, the Sixth Circuit has
found that a plaintiff’s conduct ‘must display either an intent to thwart judicial
proceedings or a reckless disregard for the effect of his conduct on those proceedings.’”
Carthon, 290 F.R.D. at 87 (quoting Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir.
2005)). While plaintiff’s decision to unilaterally alter the schedule established by the
Court was improper and ill-advised, plaintiff’s single failure to timely file the
administrative record does not constitute a clear record of delay, contempt for the Court’s
orders, and intent to thwart judicial proceedings with a reckless disregard to the
consequences of its conduct. See Wu, 420 F.3d at 643 (6th Cir. 2005); Harmon v. CSX
Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997). The first factor weighs against
With respect to the second factor, defendant contends that plaintiff’s failure to file
the administrative record deprives defendant of the opportunity to properly defend this
matter, and that it has already incurred the expense of attending a case management
conference and should not have to incur additional expenses of preparing for and
attending another as a consequence of plaintiff’s non-compliance. This argument is not
persuasive. If the Court permits plaintiff to file the administrative record under a revised
CMP, defendant will not be deprived of any opportunity to defend itself as the case goes
forward. The prejudice to defendant as a consequence of a revised CMP at this early
stage in the case is de minimis. Thus, this factor weighs against dismissal.
As to the third factor, plaintiff was not warned by the Court in advance that failure
to file the administrative record by August 12, 2016 would result in dismissal of the case.
Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008) (“‘[p]rior
notice, or the lack thereof, is . . . a key consideration’ in determining whether a district
court abused its discretion in dismissing a case for failure to prosecute”) (quoting
Stough v. Mayville Cmty. Sch., 138 F.3d 612, 615 (6th Cir. 1998)). “The Sixth Circuit
‘has repeatedly reversed district courts for dismissing cases because litigants failed to
appear or to comply with pretrial orders when the district courts did not put the derelict
parties on notice that further non-compliance would result in dismissal.’” Carthon, 290
F.R.D. at 87 (S.D. Ohio 2013) (quoting Wu, 420 F.3d at 644). This factor also weighs
against dismissal. As to the fourth factor, given the Court’s analysis of the three prior
factors, consideration of a lesser sanction than dismissal is warranted in this case.
After balancing the above factors, the Court concludes that dismissal of this case
because plaintiff failed to timely file the administrative record in accordance with the
CMP is not warranted at this time. That said, parties and their counsel are reminded and
cautioned that it is for the Court, not the parties, to set the dates and deadlines for the
management of this case. If the parties desire to modify the case management plan
established by the Court, they must move the Court to alter the schedule. Future noncompliance with the Court’s orders may result in sanctions.
For all of the foregoing reasons, defendant’s motion to dismiss pursuant to Fed. R.
Civ. P. 41(b) is denied. The Court will issue an amended case management plan by
separate order, which will include a revised date by which plaintiff must file the
administrative record. Plaintiff is advised that the administrative record must be
separately (and timely) filed; plaintiff may not simply refer to previously filed documents
to satisfy this obligation. Failure of plaintiff to comply with Court orders or to meet case
deadlines may result in sanctions, up to and including dismissal.
Given that the Court will established new case management deadlines, plaintiff’s
motion for a second case management conference is denied. (Doc. No. 27.)
IT IS SO ORDERED.
Dated: July 20, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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