Cunningham v. Pratt et al

Filing 86

ORDER: Accordingly, the pending Reports and Recommendation (Doc. Nos. 82, 83, 84 and 85) are ADOPTED and APPROVED. Thus, consistent with those Reports and Recommendations, the pending so-called Motions for Summary Judgment (Doc. Nos. 75, 77, 78 a nd 79) all are GRANTED, insofar as they seek dismissal of the Complaint for failure to prosecute under Rule 41(b). Therefore, Plaintiff's claims against Defendants Argo Marketing Group; Praza, LLC; SV Trust; and Berman & Rabin, P.A. are DISM ISSED without prejudice. Because Plaintiff has failed to prosecute this action as to any Defendant, Plaintiff's claims against the remaining Defendants also are DISMISSED without prejudice, pursuant to Fed. R. Civ. P. 41(b), as well. In shor t, the Complaint in its entirety is dismissed without prejudice. Signed by District Judge Eli J. Richardson on 12/13/2018. (xc:Pro se party by email.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CRAIG CUNNINGHAM,
Plaintiff,
v.
STEVEN PRATT, et al.,
Defendants.

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NO. 3:16-cv-2468
JUDGE RICHARDSON

ORDER
Pending before the Court are four Reports and Recommendations of the Magistrate Judge
(Doc. Nos. 82, 83, 84 and 85), to which no objections have been timely filed. 28 U.S.C.
§ 636(b)(1)(C).1
STANDARD OF REVIEW
A district judge must determine de novo any part of a Magistrate Judge’s disposition that
has been properly objected to. Fed. R. Civ. P. 72(b)(3). After reviewing the evidence, the Court is
free to accept, reject, or modify the proposed findings or recommendations of the Magistrate Judge.
28 U.S.C. § 636(b)(1)(C); Brown v. Bd. of Educ. of Shelby Cty. Schs., 47 F. Supp. 3d 665, 674
(W.D. Tenn. 2014). The district court is not required to review—under a de novo or any other
standard—any issue that is not the subject of an objection. Id. (citing Thomas v. Arn, 474 U.S. 140,
150 (1985)). If there is no objection to a magistrate judge’s recommendation, then the court may
accept the recommendation without review. Hampton v. INSYS Therapeutics, Inc., 319 F. Supp.

Failure to file specific objections within fourteen days of service of the Report and
Recommendation can constitute a waiver of any right to raise the matter in further proceedings.
Local Rule 72.04.
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3d 1204, 1206 (D. Nev. 2018); Thomas, 474 U.S. at 149 (“We are therefore not persuaded that the
statute positively requires some lesser review by the district court when no objections are filed.”)
While the statute does not require the judge to review an issue if no objections are filed, it does
not preclude further review by the district judge. Id. at 154. The undersigned district judge has in
fact reviewed the recommendations despite the lack of objections thereto.
ANALYSIS
Each of the four Reports and Recommendations recommends the grant of a Motion for
Summary Judgment filed, respectively, by four different Defendants. Despite its name, each
“Motion for Summary Judgment” actually is, or at least includes as an alternative, a request to
dismiss the Complaint under Rule 41(b) for failure to prosecute. The Magistrate Judge
recommends granting the four Motions for Summary Judgment, pursuant to Fed. R. Civ. P. 41(b),
based upon Plaintiff’s failure to prosecute this action. Plaintiff, who filed this lawsuit, pro se, on
September 9, 2016, has taken no action in this case for more than eight months. He has failed to
respond to Defendants’ discovery requests. As noted, he did not respond to the Motions for
Summary Judgment or to the Reports and Recommendations.
Fed. R. Civ. P. 41(b) provides that, if a plaintiff fails to prosecute or to comply with the
rules or a court order, a defendant may move to dismiss the action or any claim against it. The
Court agrees with the Magistrate Judge that Plaintiff’s claims against these Defendants should be
dismissed without prejudice, in keeping with the Court’s strong preference for adjudicating cases
on the merits. See, e.g., Docket No. 82 at 4.
Accordingly, the pending Reports and Recommendation (Doc. Nos. 82, 83, 84 and 85) are
ADOPTED and APPROVED. Thus, consistent with those Reports and Recommendations, the
pending so-called Motions for Summary Judgment (Doc. Nos. 75, 77, 78 and 79) all are

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GRANTED, insofar as they seek dismissal of the Complaint for failure to prosecute under Rule
41(b).2 Therefore, Plaintiff’s claims against Defendants Argo Marketing Group; Praza, LLC; SV
Trust; and Berman & Rabin, P.A. are DISMISSED without prejudice.
Because Plaintiff has failed to prosecute this action as to any Defendant, Plaintiff’s claims
against the remaining Defendants also are DISMISSED without prejudice, pursuant to Fed. R.
Civ. P. 41(b), as well. In short, the Complaint in its entirety is dismissed without prejudice.
The Clerk is directed to close the file. The pretrial conference set for January 28, 2019, and
the trial set for February 12, 2019, are canceled. This Order shall constitute the final judgment for
purposes of Fed. R. Civ. P. 58.
IT IS SO ORDERED.
___________________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE

Consistent with the Reports and Recommendation, to the extent that the pending Motions instead
seek summary judgment, they have not been ruled on by the Court. This means that there has been
no determination on the merits of either Plaintiff’s Complaint or any Defendant’s Motion for
Summary Judgment.
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