Cook Productions LLC v. Does 1-15

Filing 53

REPORT AND RECOMMENDATIONS re 14 Amended Complaint filed by Cook Productions LLC. It is RECOMMENDED that the Court DISMISS Plaintiff's claims against Defendant Jennifer Lipsy WITHOUT PREJUDICE under Rule 41(b). Objections to R&R due by 8/23/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on August 9, 2017. (jlk)(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
COOK PRODUCTIONS LLC,
Plaintiff,
Case No. 2:16-cv-1192
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

JOHN DOES 1–15,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court on the July 24, 2017, Show Cause Order. (ECF No. 42.)
For the reasons that follow, it is RECOMMENDED that the Court DISMISS Plaintiff’s claims
against Defendant Jennifer Lipsy WITHOUT PREJUDICE pursuant to Federal Rule of Civil
Procedure 41(b) for failure to prosecute.
I.
On June 2, 2017, Plaintiff amended the Complaint, naming individuals in place of John
Doe Defendants. (ECF No. 14.) The docket reflects that Plaintiff effected service of process on
Defendant Jennifer Lipsy on June 26, 2017, and that this Defendant’s response to the Amended
Complaint was due July 17, 2017. (ECF No. 30.) Defendant Lipsy did not file an answer or
other responsive pleading.
Because Plaintiff did not apply for and obtain an entry of default from the Clerk pursuant
to Federal Rule of Civil Procedure 55(a) against Defendant Lipsy, on July 24, 2017, the Court
ordered Plaintiff to show cause within fourteen days why its claims against this Defendant
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should not be dismissed for failure to prosecute unless it has applied for an entry of default from
the Clerk. (ECF No. 42.)
Plaintiff has not applied for an entry of default or otherwise responded to the Show Cause
Order.
II.
Under the circumstances presented in the instant case, the Undersigned recommends
dismissal of Plaintiff’s claims against Defendant Lipsy without prejudice pursuant to Rule 41(b).
The Court’s inherent authority to dismiss a plaintiff’s action because of his or her 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); 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.
Walbash R. Co., 370 U.S. 626, 629–32 (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 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

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properly dismissed by the district court where there is a clear record of delay or contumacious
conduct.’” Id. (quoting Knoll, 176 F.3d at 363).
III.
Here, the record demonstrates such delay. After Defendant Lipsy failed to timely
respond to the Amended Complaint and Plaintiff did not apply for an entry of default from the
Clerk, the Court ordered Plaintiff to show cause why its claims against Defendant Lipsy should
not be dismissed for prejudice for want of prosecution. This Show Cause Order provided
Plaintiff with adequate notice of the Court’s intention to dismiss these claims for failure to
prosecute and supplied Plaintiff with a reasonable period of time to respond or to apply for entry
of default. Nevertheless, Plaintiff has continued to fail to apply for entry of default and has
wholly failed to respond to the Show Cause Order. Because Plaintiff has missed deadlines and
disregarded a Court Order, the Undersigned concludes that no alternative sanction would protect
the integrity of the pretrial process. The Undersigned therefore RECOMMENDS that the Court
DISMISS Plaintiff’s claims against Defendant Jennifer Lipsy WITHOUT PREJUDICE under
Rule 41(b).
IV.

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
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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: August 9, 2017

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

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