Foley et al v. University of Dayton Office of Legal Affairs et al

Filing 73

REPORT AND RECOMMENDATIONS: 69 Defendants' Joint MOTION to Dismiss be denied. Objections to R&R due by 7/20/2017. Signed by Magistrate Judge Sharon L. Ovington on 7-6-17. (mcm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ANDREW FOLEY, et al.,
Plaintiffs,
vs.
UNIVERSITY OF DAYTON, et al.,
Defendants.

: Case No. 3:15-cv-00096
:
: District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
:
:
:
:
:

REPORT AND RECOMMENDATION1
This case is before the Court upon Defendants’ Joint Motion to Dismiss (Doc. #69)
to which Plaintiffs did not respond. Defendants argue that dismissal is warranted because
Plaintiffs have failed to participate in this case in any substantive manner; have not
identified substitute counsel; and have not filed any indication, by the Court’s deadline
(May 1, 2017), that they seek to proceed pro se.
After Defendants filed their Motion to Dismiss, the Court ordered Plaintiffs to show
cause why this case should not be dismissed for failure to prosecute. The Court provided
Plaintiffs with the alternative option to obtain counsel by June 26, 2017. Plaintiffs thereafter
obtained counsel. Plaintiffs’ new counsel filed a Notice of Appearance on June 26, 2017
(Doc. #71) and attorney William Norman filed a Motion for Pro Hac Vice Admission,
which the Court granted by Notation Order.

1

Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

Rule 41(b) of the Federal Rules of Civil Procedure authorizes dismissal of a case for
failure to prosecute. District courts also have the inherent power to dismiss civil cases for
want of prosecution to “manage their own affairs so as to achieve the orderly and
expeditious disposition of cases. Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962).
Because Plaintiffs obtained new counsel by the Court’s June 26, 2017 deadline, and because
Defendants have not presently shown they have suffered any prejudice due to Plaintiffs’
delay in obtaining new counsel, dismissal of this case under either Rule 41(b) or the Court’s
inherent authority is unwarranted.
IT IS THEREFORE RECOMMENDED THAT:
Defendants’ Joint Motion to Dismiss (Doc. #69) be DENIED.

July 6, 2017

slo/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

2

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendation. Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendation is based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party=s objections within FOURTEEN days after
being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

3