Sheet Metal Workers Local Union 24 Joint Apprenticehip and Training Committee, and Scott Cosgrove, Scott Hammond, Jeff Rowe, Cameron Saunders, Tony Staten, and Jim Williams et al v. R&C Construction Services Co. LLC

Filing 9

REPORT AND RECOMMENDATION: It is RECOMMENDED that the Court DISMISS Plaintiffs' claims against Defendants WITH PREJUDICE under Rule 41(b). Objections to R&R due by 11/27/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 11/9/2015. (mas)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SHEET METAL WORKERS LOCAL
UNION 24 JOINT APPRENTICESHIP
AND TRAINING COMMITTEE, et al.,
Plaintiffs,

Civil Action 2:15-cv-2083
Judge James L. Graham
Magistrate Judge Elizabeth P. Deavers

v.

R&C CONSTRUCTION SERVICES CO.
LLC,
Defendant.

REPORT AND RECOMMENDATION
On August 21, 2015, the Clerk entered Default against Defendant. (ECF No. 6.) On
September 22, 2015, the Court directed Plaintiffs to file a status report within fourteen days if
they had not filed a motion for default judgment. (ECF No. 7.) Plaintiffs failed to comply with
the Court’s Order. Consequently, on October 16, 2015, this Court issued an Order directing
Plaintiffs within fourteen days to apply for default judgment or show cause why the case should
not be dismissed for want of prosecution. (ECF No. 8.) To date, Plaintiffs have failed to apply
for default judgment and failed to comply with 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, Plaintiffs have failed to respond to the Court’s October 16, 2015 Order. The
Order cautioned Plaintiffs that failure to comply would result in dismissal for want of
prosecution of their 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 Plaintiffs’ claims against
Defendants 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)).
IT IS SO ORDERED.

Date: November 9, 2015

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