Link v. Laughlin Memorial Hospital, Incorporated

Filing 30

MEMORANDUM AND ORDER: Dismissal is a harsh remedy, and the Court has taken all the steps at its disposal to avoid one in this case. However, with the plaintiff failing to fulfill her elemental duty of keeping in touch, this case i s stagnating, and the stagnation is prejudicial to the defendant as memories grow cold and witnesses scatter. There is simply no lesser sanction which would move the case forward. Therefore, the plaintiffs case is DISMISSED, but WITHOUT PREJUDICE. Signed by Magistrate Judge Clifton L Corker on 04/17/2017. (c/m Sandra Link) (CAT)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
SANDRA LINK
V.
LAUGHLIN MEMORIAL HOSPITAL,
INCORPORATED

)
)
)
)
)
)

NO. 2:15-CV-272

MEMORANDUM AND ORDER
This action was brought by plaintiff Sandra Link on October 9, 2015, alleging that
the defendant retaliated against her in violation of the Family Medical Leave Act, 29
U.S.C. § 2601, et seq. The parties subsequently consented to the undersigned United
States Magistrate Judge conducting all further proceedings, including trial and entry of a
final judgment. An order of reference was entered by the District Judge [Doc. 13]. A
scheduling order was then entered on March 2, 2016, setting the trial for April 11, 2017.
The parties then commenced to prepare the case for ultimate resolution.
As stated in the last order entered in this case on March 1, 2017 [Doc. 29], the
Court entered an order on November 28, 2016 [Doc. 27] stating that plaintiff’s counsel,
Andy L. Allman, had been suspended from practicing law in the Eastern District of
Tennessee, following his suspension by the Tennessee Supreme Court. That November
28th order also advised the plaintiff that she would be required to either obtain new
counsel or advise the Court that she would be representing herself. After noting that the
Court did not have plaintiff’s mailing address, that order required Mr. Allman to send a
copy of the order to plaintiff at her last known address, and to certify that he had done so.

When no such certification was filed, the Court called Mr. Allman’s office and left a
voice message regarding his need to contact the plaintiff. No response to that call was
ever received.
Due to concerns that that Mr. Allman had not advised the plaintiff of the status of
her case, or forwarded her a copy of the Court’s November 28th order, the Court obtained
the plaintiff’s last known address from counsel for the defendant. The March 1st order
specifically advised the plaintiff that she would have have until April 15, 2017 in which
to either: (1) retain new counsel and have such counsel enter an appearance on her behalf;
or (2) inform the Court in writing that she intends to represent herself. It also warned the
plaintiff that if she did not take either of these steps on or before April 15, 2017, the
Court would dismiss this case in its entirety under Fed. R. Civ. P. 41 for failure to
prosecute. A copy of that order was mailed to the plaintiff by the Clerk of the Court.
Nothing has been heard from the plaintiff or anyone else in response to that order.
Fed. R. Civ. P. 41(b) provides that "[i]f the plaintiff fails to prosecute or to comply
with these rules or a court order, a defendant may move to dismiss the action or any claim
against it." Although the rule itself refers to a motion by a defendant in the case, the Sixth
Circuit has held that "[i]t is clear that the district court does have the power under Rule
41(b), Fed. R. Civ. P., to enter a sua sponte order of dismissal." Carter v. City of
Memphis, Tenn., 636 F.2d 159, 161 (6th Cir. 1980) (per curiam), citing Link v. Wabash
Railroad Co., 370 U.S. 626 (1962). Link itself held that "[N]either the permissive
language of the Rule - which merely authorizes a motion by the defendant - nor its policy
requires us to conclude that it was the purpose of the Rule to abrogate the power of the
2

Courts, acting on their own initiative to clear their calendars of cases that have remained
dormant because of the inaction or dilatoriness of the parties seeking relief." Link, 370
U.S. at 629-630. The Sixth Circuit in Carter, however, reversed the dismissal of the suit
by the trial court because, although the actions of that plaintiff s attorney which led to the
dismissal of the case "were wholly insufficient...," the plaintiff was "blameless." Carter,
supra, at 161. It also stated that dismissal should be ordered "only in extreme situations
showing 'a clear record of delay or contumacious conduct by the plaintiff."' Id. citing
Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382, 385 (5th Cir. 1978). The case was
"remanded to permit plaintiff a short and reasonable period within which to comply with
the district court's orders." Id. In Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir.
1988), a case which involved a pro se plaintiff, the court stated "[i]n the Sixth Circuit, we
have frequently reversed district courts for dismissing cases because litigants failed to
appear or to comply with pretrial orders when the district courts did not put the derelict
parties on notice that further noncompliance would result in dismissal." (emphasis
added). The Harris panel reversed and remanded because there had been no such
warning of dismissal, and because the pro se plaintiff had filed a motion to
reconsider which the trial court summarily denied. Id.
In the present case, the plaintiff has failed to respond to the March 1st order of this
Court. She was warned in that order sent to the address she gave in her October of 2016
deposition that this case would be dismissed unless she either obtained substitute counsel
or advised that she would be representing herself. This Court has done all that could
reasonably have been done to keep this case from, in the language of Link, supra,
3

remaining "dormant because of the inaction or dilatoriness of the parties seeking relief."
Link, 370 U.S. at 629-630. Even if the plaintiff moved sometime after her deposition in
October 2016 from the address she gave and left no forwarding address, she should have
inquired about the status of her case. It has been over 5 months since her lawyer was
suspended from the practice of law, and far longer than that since any activity has
occurred in the case other than attempts to advise plaintiff of her perilous situation.
Indeed, it has been over 45 days since the March 1st order was sent to her. Such a total
failure by a party to advise the Court in which she is a party to a suit of her whereabouts
should surely fit the definition of "contumacious" conduct.
Dismissal is a harsh remedy, and the Court has taken all the steps at its disposal to
avoid one in this case. However, with the plaintiff failing to fulfill her elemental duty of
keeping in touch, this case is stagnating, and the stagnation is prejudicial to the defendant
as memories grow cold and witnesses scatter. There is simply no lesser sanction which
would move the case forward. Therefore, the plaintiff’s case is DISMISSED, but
WITHOUT PREJUDICE.
SO ORDERED:

s/ Clifton L. Corker
UNITED STATES MAGISTRATE JUDGE

4