Kreisel v. Liberty Life Assurance Company of Boston

Filing 17

REPORT AND RECOMMENDATION re 3 Complaint filed by Jacquelyn Kreisel: It is RECOMMENDED that the Court DISMISS Plaintiff's claims against Defendant WITH PREJUDICE under Rule 41(b). Objections to R&R due by 3/14/2016. Signed by Magistrate Judge Elizabeth Preston Deavers on 2/24/2016. (mas)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JACQUELYN KREISEL,
Plaintiff,

Civil Action 2:15-cv-1791
Judge George C. Smith
Magistrate Judge Elizabeth P. Deavers

v.

LIBERTY LIFE ASSURANCE
COMPANY OF BOSTON,
Defendant.

REPORT AND RECOMMENDATION
Upon report that this case was settled, the Court directed the parties to file either an
appropriate entry of dismissal or a status report by November 19, 2015. (ECF No. 14.) On
November 19, 2015 Defendant filed a status report indicating that the parties reached a full
settlement embodied in a signed, confidential settlement agreement. (ECF No. 15.) Defendant
also stated that Plaintiff confirmed receipt of the full settlement amount. (Id.) According to
Defendant, counsel could not reach Plaintiff, who, therefore, did not join in the status report.
(Id.) Plaintiff did not respond to the Court’s October 19, 2015 Order to submit a status report.
On February 4, 2016 the Court ordered Plaintiff to show cause why this case should not be
dismissed for want of prosecution within fourteen days of the date of the Show Cause Order.
(ECF No. 16.) To date, Plaintiff has failed to respond to the Court’s Show Cause Order. This
matter is, therefore, before the Court for consideration of Plaintiffs’ failure to comply with two

of this Court’s Orders and failure to prosecute. For the reasons set forth below, it is
RECOMMENDED that this action be DISMISSED for failure to prosecute.
The Court’s inherent authority to dismiss a plaintiff’s action or particular claims within
an action with prejudice because of its failure to prosecute is expressly recognized in Federal
Rule of Civil Procedure 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.” Fed. R. Civ. P. 41(b); 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). “Rule 41(b) recognizes
the power of the district court to enter a sua sponte order of dismissal.” Steward v. City of
Jackson, 8 F. App’x 294, 296 (6th Cir. 2001) (citing Link, 370 U.S. 626 at 630).
To date, Plaintiff has failed to respond to the Court’s February 4, 2016 Show Cause
Order. The Show Cause Order cautioned Plaintiff that failure to comply would result in
dismissal for want of prosecution of her claims against Defendant. 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); see also Steward, 8 F.
App’x at 296.
It is therefore RECOMMENDED that the Court DISMISS Plaintiff’s claims against
Defendant WITH PREJUDICE under Rule 41(b).
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: February 24, 2016

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE