Austin et al v. Kasich et al
Filing
39
REPORT AND RECOMMENDATION that this case be dismissed without prejudice for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 11/10/2015. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Robert Austin,
:
Plaintiff,
Ohio Governor John Kasich,
et al.,
Case No.
:
v.
:
2:12-cv-983
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
:
:
Defendants.
REPORT AND RECOMMENDATION
Remaining defendant Gary Mohr filed a motion for summary
judgment on August 14, 2015, together with a supporting
memorandum of law.
Despite the requirement under Local Rule
7.2(a)(2) that a memorandum opposing the motion be filed within
21 days from the date of service of the motion, no such
memorandum was filed.
On October 8, 2015, this Court ordered
plaintiff to respond within fourteen days, or face dismissal of
this action without prejudice for failure to prosecute.
This
order was mailed to plaintiff that same day and has not been
returned as undeliverable.
order.
Plaintiff has not responded to the
Consequently, for the following reasons, the Court will
recommend that this case be dismissed.
If the plaintiff fails properly to prosecute an action,
it can be dismissed either pursuant to the Court's inherent
power to control its docket, or involuntarily under Fed. R.
Civ. P. 41(b).
Link v. Wabash R. Co., 370 U.S. 626 (1962);
Boudwin v. Graystone Insurance Co., 756 F.2d 399 (5th Cir.
1985).
Dismissal for failure to prosecute can occur where,
for example, a plaintiff fails to respond to an order
directing that he file a brief.
Dynes v.
Army Air Force
Exchange Service, 720 F.2d 1495 (11th Cir. 1983).
Ordinarily, some notice of the court's intention to dismiss
for failure to prosecute is required, see Harris v.
Callwood, 844 F.2d 1254 (6th Cir. 1988), but that requirement
is met if the Court affords a plaintiff a reasonable period
of time to comply with orders before the dismissal occurs.
Sepia Enterprises, Inc. v. City of Toledo, 462 F.2d 1315 (6th
Cir. 1972)(per curiam).
Such a dismissal is also appropriate
for failure to respond to a summary judgment motion.
See
Stanley v. Continental Oil Co., 536 F.2d 914 (10th Cir.
1976); see also Lang v. Wyrick, 590 F.2d 257 (8th Cir. 1978).
The facts of this case indicate a clear failure to
prosecute.
The Court specifically advised plaintiff in its
prior order that this action would be dismissed if plaintiff
failed to respond.
That order has not been returned as
undeliverable and the Court assumes that plaintiff received it.
Plaintiff has not offered any explanation for the
failure to respond.
Therefore, the Court can only conclude
that the failure is intentional.
An intentional failure to
respond to a court order is sufficient justification for a
dismissal.
For the foregoing reasons, it is recommended that this
case be dismissed without prejudice for failure to prosecute
pursuant to Fed. R. Civ. P. 41(b).
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
2
A judge
recommendations to which objection is made.
Upon proper
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. ยง636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
/s/ Terence P. Kemp
United States Magistrate Judge
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