Alig-Mielcarek v. Jackson et al
Filing
146
REPORT AND RECOMMENDATIONS re 144 Order re Status Report & 145 Show Cause Order: The Magistrate Judge RECOMMENDS that this action be DISMISSED for failure to prosecute. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 3/12/2014. (er1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JANA M. ALIG MIELCAREK, Ph.D.,
Plaintiff,
Civil Action 2:11-cv-00255
Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers
v.
DERRELL L. JACKSON, Ed.D., et al.,
Defendants.
REPORT AND RECOMMENDATION
On January 27, 2014, this Court issued an Order directing Plaintiff to file a Status Report
concerning her intention to prosecute this case. (ECF No. 144.) Plaintiff failed to comply with
the Court’s Order. Consequently, on February 19, 2014, this Court issued a Show Cause Order,
directing Plaintiff to show cause within fourteen (14) days of the date of the order why the action
should not be dismissed for failure to prosecute. (ECF No. 145.) Plaintiff failed to comply with
the Court’s Show Cause Order. For the reasons set forth herein, it is RECOMMENDED that
this action be DISMISSED for failure to prosecute.
The Court's inherent authority to dismiss a plaintiff’s action with prejudice because of his
or her failure to prosecute is expressly recognized in Rule 41(b), which provides in pertinent
part: “If the plaintiff fails to prosecute or 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) . . . operates as an adjudication on the merits.”
Link v. Walbash R. Co., 370 U.S. 626, 629-31 (1962). “This measure 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. AT & T, 176 F.3d 359, 63 (6th Cir. 1999).
The Court provided Plaintiff with clear notice that her failure to comply with Court’s
Orders would subject this case to dismissal. See Stough v. Mayville Cmty. Schs., 138 F.3d 612,
615 (6th Cir. 1998) (noting that “[p]rior notice, or lack thereof, is . . . a key consideration” in
whether dismissal under rule 41(b) is appropriate). Plaintiff’s failure to comply with these clear
Orders of the Court, which established deadlines for compliance, constitutes bad faith or
contumacious conduct. Steward v. Cty. of Jackson, Tenn., 8 F. App’x 294, 296 (6th Cir. 2001)
(concluding that a plaintiff’s failure to comply with a court's order “constitute[d] bad faith or
contumacious conduct and justifie[d] dismissal”). In an abundance of caution, given the
procedural posture of this case, it is RECOMMENDED that this action be DISMISSED
WITHOUT PREJUDICE for failure to prosecute.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
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judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
Date: March 12, 2014
/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
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