Flowers v. Fayette Progressive Industries, Inc. et al
Filing
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OPINION AND ORDER granting 18 Motion to Dismiss for Failure to Prosecute. Signed by Magistrate Judge Kimberly A. Jolson on 1/31/2019. (ew)(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
JODI R. FLOWERS,
Plaintiff,
v.
Civil Action 2:18-cv-121
Magistrate Judge Jolson
FAYETTE PROGRESSIVE
INDUSTRIES, INC., et al.,
Defendants.
OPINION AND ORDER
This matter, in which the parties have consented to the jurisdiction of the Magistrate
pursuant to 28 U.S.C. § 636(c) (Doc. 8), is before the Court on Defendant Fayette Progressive
Industries, Inc.’s Motion to Dismiss for Failure to Prosecute. (Doc. 18). For the reasons stated
below, the Motion is GRANTED and this action is DISMISSED.
I.
BACKGROUND
This matter began ordinarily enough when Plaintiff filed a Complaint on February 14,
2018. (Doc. 1). The matter proceeded, and, on May 2, 2018, the Court entered a Scheduling
Order. (Doc. 11). On September 21, 2018, however, the Court learned that the case had not been
proceeding as anticipated. On that date, Plaintiff’s counsel Matthew G. Bruce submitted a motion
to withdraw as counsel explaining “Plaintiff [had] failed to communicate with Mr. Bruce or the
Spitz Law Firm in any way since the filing of this action.” (Doc. 13). Mr. Bruce cited at least
eight attempts to contact Plaintiff via numerous communication avenues including email, certified
mail, and telephone. (Id. at 1). Plaintiff, however, failed “to communicate with Mr. Bruce and
participate in her case against Defendants, despite multiple warnings that Mr. Bruce and the Spitz
Law Firm would withdraw if she [failed] to respond.” (Id.).
The Court granted Mr. Bruce’s motion to withdraw as legal counsel on September 24,
2018, and ordered the Plaintiff to retain new legal counsel or inform the Court of her plans to
proceed pro se. (Doc. 14). The Court gave Plaintiff thirty days to comply with the Order and
further warned that failure to comply “may result in dismissal of the case for want of prosecution.”
(Id.). The Order was mailed to Plaintiff and returned as undeliverable on October 15, 2018. (Doc.
15). Plaintiff’s thirty-day clock expired, and the Court heard nothing from her.
Roughly six weeks after that, Defendant filed the instant Motion (Doc. 18). The next day,
on December 12, 2018, the Court gave Plaintiff another chance. More specifically, Plaintiff was
given a new thirty-day clock to find new counsel or, in the alternative, notify the Court of her
intent to proceed pro se. (Doc. 19). Again, the Court warned that failure to comply with the
Court’s Order could result in dismissal. (Id.). Although under no obligation to do so, the Court
obtained Plaintiff’s email address from prior counsel and sent this Order to Plaintiff via email and
regular mail. Another thirty days passed, and Plaintiff did not inform the Court of her intentions.
Also during this time period, Plaintiff’s deadline to respond to Defendants’ Motion to Dismiss for
Failure to Prosecute expired.
Then, on January 11, 2019, the Court scheduled a status conference for January 18, 2019,
thereby giving Plaintiff another opportunity to appear. (Doc. 21). Notice of the status conference
was sent to Plaintiff’s last known address and to the email address provided by her prior counsel.
Plaintiff failed to appear. Next, the Court issued a Show Cause Order (Doc. 22) directing her to
show cause by January 25, 2019, as to why the Court should not dismiss the case for want of
prosecution. To date, Plaintiff has failed to show cause.
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II.
STANDARD
The Court may dismiss an action for failure to prosecute under its inherent power to control
its docket, see Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962), or under Rule 41(b) of the
Federal Rules of Civil Procedure. Rule 41(b) provides, in pertinent part that “[i]f 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.” The measure is available to the
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 court 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 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.
DISCUSSION
As detailed above, Plaintiff has taken no steps to prosecute this action since at least June
of 2018. Around that time, Plaintiff ceased communications with her lawyer, despite counsel’s
repeated attempts to contact her. Then, beginning in September of 2018, this Court began its
attempts to reach Plaintiff, but to no avail. Indeed, this Court has given Plaintiff four chances over
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a span of many months to indicate her intent to prosecute this action, but Plaintiff has failed to
make any contact with the Court. Further, she has failed to provide her current address to this
Court. See Barber v. Runyon, No. 93-6318, 1994 U.S. App. LEXIS 9709, 1994 WL 163765, at *1
(6th Cir. May 2, 1994) (holding that a pro se litigant has a duty to supply the court with notice of
any and all changes to address). Given these facts, the Court concludes that Plaintiff has
abandoned this action. And, although this Court has a “favored practice of reaching a disposition
on the merits,” the Court’s “need to manage its docket, the interest in expeditious resolution of
litigation, and the risk of prejudice to the defendant” outweigh allowing this case to linger. See
Little v. Yeutter, 984 F.2d 160, 162 (6th Cir. 1993); see also Doc. 18 (asserting that Plaintiff’s
actions have “caus[ed] Defendants continued time and expense awaiting an uncertain timeline for
resolution.”). Finally, this Court has considered less drastic sanctions than dismissal but concludes
that any such effort would be futile given Plaintiff’s failure to participate in these proceedings.
IV.
CONCLUSION
Based upon the foregoing, Defendant Fayette Progressive Industries, Inc.’s Motion to
Dismiss for Failure to Prosecute (Doc. 18) is GRANTED, and this action is DISMISSED.
IT IS SO ORDERED.
Date: January 31, 2019
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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