Johnson v. Wyeth LLC et al

Filing 87

REPORT AND RECOMMENDATIONS re 86 MOTION to Dismiss for Lack of Prosecution: The Magistrate Judge RECOMMENDS that Defendants' Motion to Dismiss be GRANTED and 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 9/16/2013. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KAREN JOHNSON,
Plaintiff,

Civil Action 2:13-cv-267
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

WYETH LLC., et al.,
Defendants.

REPORT AND RECOMMENDATION
On June 7, 2013, this Court issued an Order directing Plaintiff to retain new counsel in
this matter, advise the Court that she will proceed pro se, or file for voluntary dismissal by
August 6, 2013. (ECF No. 79.) Plaintiff failed to comply with the Court’s Order.
Consequently, on August 16, 2013, this Court issued a Show Cause Order, directing Plaintiff to
show cause within fourteen (14) days of the date of the order why this action should not be
dismissed for failure to prosecute. (ECF No. 85.) Plaintiff failed to comply with the Court’s
Show Cause Order. This matter is before the Court for consideration of Plaintiff’s failure to
comply with two of this Court’s Orders and her failure to prosecute. Also before the Court is
Defendants Wyeth LLC’s, Wyeth Pharmaceuticals, Inc.’s, and Pfizer, Inc.’s (collectively, the
“Pfizer Defendants”) Motion to Dismiss, which is based on the grounds set forth above. (ECF
No. 86.) For the reasons set forth herein, it is RECOMMENDED that Defendants’ Motion to
Dismiss be GRANTED and 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 retain new counsel and
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”). Accordingly,
it is RECOMMENDED that the Pfizer Defendants’ Motion to Dismiss be GRANTED and that
this action be DISMISSED 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
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: September 16, 2013

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge