Fox v. Manager

Filing 10

REPORT AND RECOMMENDATION re 3 Complaint filed by Gary Raymond Fox. It is RECOMMENDED that Plaintiff's action be DISMISSED WITH PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. Objections to R&R due by 2/22/2018. Signed by Magistrate Judge Chelsey M. Vascura on 2/8/2018. (kpt)(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

GARY RAYMOND FOX,
Plaintiff,
Civil Action 2:17-cv-880
Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura

v.

MANAGER,
In Town Motel Suites,
Defendant.

REPORT AND RECOMMENDATION
This matter is before the United States Magistrate Judge for a Report and Recommendation
on the Court’s October 11, 2017 Order directing Plaintiff to pay the filing fee or submit a
completed in forma pauperis affidavit. (ECF No. 2.) For the reasons that follow, it is
RECOMMENDED that Plaintiff’s action be DISMISSED WITH PREJUDICE pursuant to
Federal Rule of Civil Procedure 41(b) for failure to prosecute.
I.
Plaintiff filed this action on October 10, 2017. (ECF No. 1.) Plaintiff had neither paid
the filing fee nor submitted the required materials in support of his application to proceed in forma
pauperis and was therefore ordered to either pay the fee or submit a completed affidavit within
thirty days. (October 11, 2017 R&R, ECF No. 2.) That Order further advised Plaintiff that that
failure to timely comply with the Order could result in dismissal of this action for failure to
prosecute.” (Id.) Plaintiff failed to do so. On November 11, 2017, the undersigned issued a
Report and Recommendation, recommending that Plaintiff’s action be dismissed with prejudice

pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. (ECF No. 4.) That
Report and Recommendation was adopted on December 13, 2017. (ECF NO. 5.) Subsequently,
upon receipt of mail returned to the Court as undeliverable, the Court became discovered that
Plaintiff’s address had been entered incorrectly on the docket. (ECF Nos. 7 & 8.) Consequently,
the Court vacated its previous Order adopting the Report and Recommendation to allow Plaintiff
time to respond to the undersigned’s first Order and Deficiency Notice. (ECF No. 2.)
To date, Plaintiff has failed to pay the filing fee or submit a completed affidavit.
II.
Under the circumstances presented in the instant case, the undersigned recommends
dismissal of Plaintiff’s action pursuant to Rule 41(b). The Court’s inherent authority to dismiss a
plaintiff’s action with prejudice because of his 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.” Fed. R. Civ. P. 41(b); Link v. Wabash R.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, 363 (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.
2

Schafer v. City of Defiance Police Dept., 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.
Here, Plaintiff has not complied with the Court’s express order that he pay the $400 filing
fee or submit a completed affidavit if he wished to proceed, even after being granted an extension
until January 29, 2018 to do so. (Dec. 29, 2017 Order, ECF No. 9.) Moreover, the Court
explicitly cautioned Plaintiff numerous times that failure to comply would result in dismissal of
this action for failure to prosecute pursuant to Rule 41(b). 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 timely
comply with the clear Orders of the Court, which established reasonable deadlines for compliance,
constitutes bad faith or contumacious conduct. See 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”). Because Plaintiff
has missed deadlines and disregarded Court orders, the Undersigned concludes that no alternative
sanction would protect the integrity of the pretrial process.
It is therefore RECOMMENDED that the Court DISMISS THIS ACTION WITH
PREJUDICE under Rule 41(b).

3

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 Judge of this Court shall make a de novo determination of those
portions of the Report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a 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
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).

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

4