Brown v. Harris et al

Filing 26

REPORT AND RECOMMENDATION: For the reasons stated below the Magistrate Judge recommends that this case be DISMISSED without prejudice for failure to prosecute, failure to obey court orders, and lack of ability to represent the named Plaintiff Eddie Lorenzo Brown, Jr. Signed by Magistrate Judge Joe Brown on 1/7/2013. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
EDDIE LORENZO BROWN, JR.,

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Plaintiff
v.
MICHAEL HARRIS, et al.,
Defendants

No. 3:11-1161
Judge Nixon/Brown
Jury Demand

TO: THE HONORABLE JOHN T. NIXON
REPORT AND RECOMMENDATION
For

the

reasons

stated

below

the

Magistrate

Judge

recommends that this case be DISMISSED without prejudice for
failure to prosecute, failure to obey court orders, and lack of
ability to represent the named Plaintiff Eddie Lorenzo Brown, Jr.
BACKGROUND
This case was originally filed in the Circuit Court for
Montgomery County.

It was subsequently removed by the Defendants

to this court. The lawsuit was originally filed by an attorney for
Eddie Brown, Sr. and Carnita Brown as the parents and next of kin
of Eddie Lorenzo Brown, Jr.

The suit alleges that Eddie L. Brown,

Jr. was a student who was expelled from the Clarksville Montgomery
County school system because of an incident on the school bus. The
complaint alleges that the Defendants discriminated against the
Plaintiff because of his race--African American (Docket Entry 1-1).
The

case

proceeded

normally

with

an

initial

case

management order (Docket Entry 8) entered on February 6, 2012.

At

the present time discovery has closed, dispositive motions are due
January 31, 2013, and the matter is set for trial on July 23, 2013
(Docket Entry 8).

The parties did have some later difficulty with

discovery, which was the subject of a telephone conference on
August 2, 2012 (Docket Entry 15).
It appears that relations between Plaintiffs and their
counsel deteriorated and subsequently the attorney’s second motion
to withdraw (Docket Entry 19) was granted by the Court and the
Plaintiffs were allowed 30 days from October 30, 2012, to secure
new counsel or advise if they would be proceeding pro se (Docket
Entry 20).
The

Plaintiffs

did

not

respond

to

this

order,

and

subsequently the Magistrate Judge entered an order on December 11,
2012 (Docket Entry 23), directing them to show cause within 21 days
why the Magistrate Judge should not recommend dismissal of the case
for failure to prosecute and failure to obey court orders. In this
order the Magistrate Judge also noted that the Browns could not
represent their minor son pro se.

He would have to be represented

by an attorney.
To date no response to either of these orders have been
received.
LEGAL DISCUSSION
As an initial matter it appears that Eddie L. Brown, Jr.
is a minor, and as such may not be represented by his parents.

2

Shepherd v. Wellman, 313 F.3d 963 (6th Cir. 2002).

This ground

alone justifies dismissal of the case at this point, absent an
appearance by a new attorney in this matter.
Additionally, the senior Browns have failed to obey the
Court order concerning progress in this case despite being warned
that

failure

to

respond

to

court

orders

could

recommendation to dismiss for failure to prosecute.

lead

to

a

Because this

is a drastic remedy, which in some cases may preclude a suit being
refiled even though it is dismissed without prejudice, the Sixth
Circuit has set out a four part test before dismissing an action
under Rule 41(b) of the Federal Rules of Civil Procedure.
(1) whether the party’s failure to cooperate is due to
willfulness, bad faith, or fault; (2) whether the
adversary was prejudiced by the dilatory conduct of the
party; (3) whether the dismissed party was warned that
failure to cooperate could lead to dismissal; and (4)
where the less drastic sanctions were imposed or
considered before dismissal was granted. Tetro v. Elliott
Popham Pontiac, 173 F.3d 988 (6th Cir. 1999).
In this case it appears that the Plaintiffs have (1)
failed to cooperate with their attorney, which has led to his
withdrawal from this matter; (2) it appears that the Defendants
have not been provided all of the discovery they were entitled to;
(3) Plaintiff have been warned about the consequences of failing to
cooperate and failing to obey Court orders; and (4) less drastic
measures have been considered and the Plaintiffs have been given
the opportunity to proceed with an attorney in this case and they
have failed to do so.

They have not responded to the Court’s

3

order, nor have they asked for additional time to secure the
services of an attorney.
The Court must be able to control its docket and move its
cases forward.

In this case, particularly since there is a minor

involved who cannot be represented by his parents without an
attorney, dismissal without prejudice appears to be the only
reasonable remedy available at this time.
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends this case be dismissed without prejudice.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court.

Any party opposing said

objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 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. 140 106 S.

Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 7th day of January, 2013.

/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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