Jackson v. Covenant Transport et al

Filing 55

REPORT AND RECOMMENDATION: As further explained below, the undersigned recommends that defendant's motion to dismiss plaintiff's action for failure to prosecute be GRANTED and that plaintiff's action be dismissed WITHOUT PREJUDICE. Signed by Magistrate Judge John S. Bryant on 10/7/11. (xc:Pro se party by regular and certified mail.)(tmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JERRI LEIGH JACKSON,
Plaintiff,
v.
COVENANT TRANSPORT,
Defendant.
To:

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No. 3:09-cv-00614
TRAUGER/BRYANT

The Honorable Aleta A. Trauger, District Judge
REPORT AND RECOMMENDATION
I. Introduction
By order entered July 2, 2009 (Docket Entry No. 4.), this matter was referred to the

undersigned for case management and to recommend ruling on any dispositive motions.
Plaintiff Jerri Leigh Jackson, of Louisville, Kentucky, filed this pro se action in forma
pauperis under Title VII of the Civil Rights Act of 1964, Civil Rights Act of 1991, and Age
Discrimination in Employment Act against defendant Covenant Transport (“Covenant”).
(Docket Entry No. 1.) Plaintiff seeks compensatory damages, punitive damages, and injunctive
relief. (Id.) Pursuant to Federal Rule of Civil Procedure 41(b), Covenant filed a motion to
dismiss for failure to prosecute on May 6, 2011. (Docket Entry No. 43.) Plaintiff did not
respond. The undersigned issued an Order to Show Cause on June 7, 2011, ordering plaintiff
Jackson to show cause, by June 27, 2011, why defendant’s motion to dismiss should not be
granted. (Docket Entry No. 50.) To date, plaintiff has not responded.
As further explained below, the undersigned recommends that defendant’s motion to
dismiss plaintiff’s action for failure to prosecute be GRANTED and that plaintiff’s action be
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dismissed WITHOUT PREJUDICE.

II. Procedural Background
Plaintiff filed her complaint in this court on June 26, 2009 (Docket Entry No. 1.) but did
not effect service on defendant until December 10, 2010. (Docket Entry No. 31.) Defendant
filed its answer on December 29, 2010 (Docket Entry No. 33) and the undersigned issued a
Scheduling Order on January 4, 2011. (Docket Entry No. 36.) The order set a deadline of May 6,
2011 for all discovery motions and June 8, 2011 for all dispositive motions. (Id.)
The clerk of court sent this scheduling order to plaintiff by certified mail, but the letter
was returned as “unclaimed; unable to forward” on March 16, 2011. (Docket Entry No. 39.)
Defendant claims it tried to contact plaintiff by certified mail two times in March, first
requesting her availability for deposition and then serving her with discovery requests. (Docket
Entry No. 44, p. 2.) Both times the Post Office returned the letters as “unclaimed; unable to
forward.” (Id.) In each instance, defendant filed notice with the court that its letter was stamped
“return to sender” and was not delivered. (Docket Entry Nos. 41-42.)
Plaintiff Jackson filed a Notice of Address Change on July 28, 2010 (Docket Entry No.
18.), informing the court and defendant of her new “homeless address” – a post office box in
Louisville, Kentucky. This court and the defendant have used the address provided in
subsequent communications to the plaintiff. Plaintiff has filed no further notice of address
change and has not appeared in this action since December 29, 2010 (Docket Entry Nos. 34-35.),
five months after apparently becoming homeless.

III. Conclusions of Law

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Federal Rule of Civil Procedure 41(b) states that “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order, the defendant may move to dismiss the action or any
claim against it.” The Sixth Circuit, however, has noted that dismissal under Rule 41(b) is a
“harsh sanction” and should only apply in extreme situations where there is a “clear record of
delay or contumacious conduct by the plaintiff.” Carter v. City of Memphis, 636 F.2d 159, 161
(6th Cir. 1980) (quoting Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382, 385 (5th Cir. 1978)).
The Sixth Circuit has further noted that courts, in reviewing such motions, should consider four
factors: (1) the willfulness, bad faith, or fault of the plaintiff; (2) whether the defendant has been
prejudiced by the plaintiff’s conduct; (3) whether the plaintiff was warned that failure to
cooperate could lead to dismissal; and (4) the availability and appropriateness of other, less
drastic sanctions. Schafer v. City of Defiance Police Dept., 529 F.3d 731, 737 (6th Cir. 2008).
Here, the undersigned finds factors two and three to be dispositive. Defendant has been
wholly unable to conduct discovery or prepare its defense, despite the fact that the final deadline
for discovery requests was more than four months ago. This is not a case of a plaintiff simply
missing deadlines or filing inadequate briefs. See Mulbah v. Detroit Bd. of Educ., 261 F.3d 586,
593-94 (6th Cir. 2001) (determining that the district court abused its discretion in granting a
motion to dismiss for failure to prosecute). Plaintiff Jackson has taken no action in this case for
over six months and has provided neither this court nor the defendant with an address where she
can be reached. Providing the court with valid contact information is a responsibility of every
plaintiff, and failure to abide by this basic requirement can constitute grounds for Rule 41(b)
dismissal. White v. City of Grand Rapids, 34 Fed. App’x 210, 211 (6th Cir. May 7, 2002)
(“[Plaintiff’s] complaint was subject to dismissal for want of prosecution because he failed to

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keep the district court appraised of his current address.”). Plaintiff was duly warned by the
undersigned in a show cause order that her failure to respond to the mailings directed to her
address of record could lead to the dismissal of her complaint. (Docket Entry No. 50.) Under
these circumstances, the undersigned finds dismissal for failure to prosecute an appropriate and
necessary sanction, as no alternative sanction “would protect the integrity of pre-trial
procedures.” Carter, 636 F.2d at 161.
Rule 41(b) states that dismissal for failure to prosecute constitutes an adjudication on the
merits “unless the dismissal order states otherwise.” Because plaintiff Jackson is proceeding pro
se and because defendant Covenant has not asserted that her failure to prosecute has been willful
or in bad faith, the undersigned specifically recommends that plaintiff’s complaint be dismissed
WITHOUT PREJUDICE. While “dismissal of a case for lack of prosecution is appropriate
when a pro se litigant fails to adhere to readily comprehended court deadlines,” May v. Pike
Lake State Park, 8 Fed. App’x 507, 508 (6th Cir. May 1, 2001), dismissal without prejudice is
more in keeping with plaintiff’s level of misconduct here, and with this court’s strong preference
for adjudicating cases on the merits. Little v. Yeutter, 984 F.2d 160, 162 (6th Cir. 1993); see
also Muncy v. G.C.R. Inc., 110 Fed. App’x 552 (6th Cir. Sept. 7, 2004).
Finally, the undersigned recommends that defendant’s request to assess costs against the
plaintiff (Docket Entry No. 43.) be DENIED. The dismissal recommended here would not
render the defendant a “prevailing party” under Federal Rule of Civil Procedure 54(d)(1), see
Hodak v. Madison Capital Mgmt., LLC, 2008 WL 5395957, at *1 (E.D. Ky. Dec. 18, 2008)
(citing, e.g., Oscar v. Alaska Dep’t of Educ. & Early Dev., 54 F.3d 978, 981-82 (9th Cir. 2008),
and, in any event, the record reveals that plaintiff lacks the capacity to pay any costs assessed,

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given her apparent indigence and homelessness. See Sales v. Marshall, 873 F.2d 115, 120 (6th
Cir. 1989) (citing In re Ruben, 825 F.2d 977, 987 (6th Cir. 1987)).

IV. Recommendation
In light of the foregoing, the Magistrate Judge recommends that defendant Covenant
Transport’s motion to dismiss for failure to prosecute be GRANTED, and that the claims against
it be DISMISSED WITHOUT PREJUDICE.
Any party has fourteen (14) days from receipt of this Report and Recommendation in
which to file any written objections to it with the District Court. Any party opposing said
objections shall have fourteen (14) days from receipt of any objections filed in which to file any
responses to said objections. Failure to file specific objections within fourteen (14) days of
receipt of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. Thomas v. Arn, 474 U.S. 140 (1985); Cowherd v. Million, 380 F.3d 909, 912
(6th Cir. 2004)(en banc).
ENTERED this 7th day of October, 2011.

______________
s/
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE

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