Kendle v. WHIG Enterprises, LLC et al

Filing 222

REPORT AND RECOMMENDATIONS that Plaintiff's case be DISMISSED for failure to prosecute pursuant to Rule 41. Objections to R&R due by 9/28/2022. Signed by Magistrate Judge Kimberly A. Jolson on 9/14/2022. (kk2)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN F. KENDLE,
Plaintiff,
v.

Civil Action 2:15-cv-1295
Chief Judge Algenon L. Marbley
Magistrate Judge Kimberly A. Jolson

WHIG ENTERPRISES,
LLC, et al.,
Defendants.
REPORT AND RECOMMENDATION
This matter is before the Court on the October 18, 2021 Order to Show Cause. (Doc. 221).
For the following reasons, the Undersigned RECOMMENDS Plaintiff’s case be DISMISSED
for failure to prosecute under Rule 41.
I.

BACKGROUND
Broadly, Plaintiff’s allegations stem from a soured business relationship with Defendants.

(See Doc. 114). Plaintiff marketed medical and pharmaceutical products for Defendants: WHIG
Enterprises, LLC (“WHIG”), its affiliate Rx Pro Mississippi (“Rx Pro”), and the owners of those
companies, Mitchell Chad Barrett (“Barrett”) and David Jason Rutland (“Rutland”). (Id., ¶ 1–7).
Following his alleged wrongful termination, Plaintiff brought claims for breach of contract, unjust
enrichment, tortious interference, and spoilation against the various Defendants. (Id., ¶¶ 47–75).
The Court dismissed Plaintiff’s claims against Rx Pro and Barrett on motions for summary
judgment but preserved all claims against WHIG and the claims for tortious interference, unjust
enrichment, and spoliation against Rutland. (Doc. 167 at 11). Soon after, WHIG informed the
Court and all parties that it had entered involuntary bankruptcy proceedings (Doc. 177), which

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required an automatic stay of the case (Doc. 182). Once a significant amount of time elapsed
following the stay—and the parties had not updated the Court on the status of proceedings—the
Court requested a status report from the parties. (Doc. 186). In a series of status reports which
followed, Plaintiff informed that Court that he considered the pending claims against WHIG
resolved through bankruptcy. (Doc. 211). He also learned that Rutland, the only remaining
Defendant, pled guilty to federal criminal charges and was facing a sentence of incarceration.
(Doc. 216). He thus represented that he would “likely . . . no longer pursue this matter . . . .” (Id.).
After additional time was afforded to Plaintiff to consider whether to proceed with the
litigation (Docs. 217, 218), Plaintiff’s counsel, through mutual agreement with Plaintiff, moved to
withdraw his representation (Doc. 219). The motion was granted, and Plaintiff was given time to
secure new representation, or, proceeding pro se, submit a joint status report setting forth a
proposed case schedule. (Doc. 220). When he failed to do so, the Court issued an Order to Show
Cause, in which it warned Plaintiff that failure to comply could result in a recommendation that
the case be terminated for failure to prosecute. (Doc. 221). To date, Plaintiff has not responded
to the Order to Show Cause.
II.

STANDARD
The Court’s inherent authority to dismiss an action because of a party’s failure to prosecute

is expressly recognized in Rule 41(b), which authorizes involuntary dismissal for failure to
prosecute or to comply with rules of procedure or court orders. See Fed. R. Civ. P. 41(b); see also
Chambers v. Nasco, Inc., 501 U.S. 32, 49 (1991) (noting that “a federal district court has the
inherent power to dismiss a case sua sponte for failure to prosecute” as recognized in Link v.
Wabash R.R. Co., 370 U.S. 626, 629–32 (1962)). “This measure is available to the district court

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as a tool to effect management of its docket and avoidance of unnecessary burdens on the taxsupported courts and opposing parties.” Knoll v. AT & T, 176 F.3d 359, 63 (6th Cir. 1999).
The Sixth Circuit directs the district courts to consider the following four factors in
deciding whether to dismiss an action for failure to prosecute under Rule 41(b):
(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.
Schafer v. City of Defiance Police Dep’t., 529 F.3d 731, 737 (6th Cir. 2008) (citing Knoll, 176
F.3d at 363). “‘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.’”
Schafer, 529 F.3d at 737 (quoting Knoll, 176 F.3d at 363).
III.

DISCUSSION
On balance, the factors set forth in Schafer support dismissal. First, despite being afforded

numerous opportunities after the conclusion of the related bankruptcy proceedings to continue in
the present litigation against Rutland (Docs. 212, 215, 217, 220), Plaintiff has failed to do so. Nor
has Plaintiff responded to the Court’s Order to Show Cause. (See Doc. 221). Clearly, Plaintiff
has “a reckless disregard for the effect of [his] conduct on [the Court’s] proceedings[,]” and thus
acted with willfulness, bad faith, or fault. Schafer, 529 F.3d at 737 (quoting Wu v. T.W. Wang,
Inc., 420 F.3d 641, 643 (6th Cir. 2005)).
Second, Rutland has suffered prejudice due to Plaintiff’s delay. Significant here, Rutland
appears to have been sentenced and incarcerated for federal crimes during Plaintiff’s delay, which
limits his ability to defend himself in the present litigation. Further, Plaintiff was explicitly warned
that his failure to comply with the Order to Show Cause could lead to a recommendation that the
case be dismissed. (Doc. 221). Finally, the Undersigned considered less drastic sanctions than
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dismissal but concludes that any such effort would be futile given Plaintiff’s continued failure to
participate in these proceedings. Grange Mut. Cas. Co. v, Mack, 270 F. App’x 372, 377 (noting
that a court must simply “consider” lesser sanctions but is not required to actually issue such
sanctions before granting a dismissal for failure to prosecute).
In view of the foregoing, the Undersigned concludes Plaintiff has abandoned this action.
Although this Court has a “favored practice of reaching a disposition on the merits,” the Court’s
“need to manage its docket [and] the interest in expeditious resolution of litigation . . .” outweigh
allowing this case to linger. Little v. Yeutter, 984 F.2d 160, 162 (6th Cir. 1993).
IV.

CONCLUSION
For the foregoing reasons, the Undersigned RECOMMENDS Plaintiff’s case be

DISMISSED for failure to prosecute pursuant to Rule 41.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) 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). A District Judge of this Court shall make a de novo determination
of those portions of the Report or specific proposed findings or recommendations to which
objection is made. Upon proper objection, a District 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.
§ 636(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

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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).
IT IS SO ORDERED.

Date: September 14, 2022

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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