Anderson v. Punjab Inc. et al

Filing 30

REPORT AND RECOMMENDATION re 1 Complaint: This matter was set for a case management conference on March 27, 2017 (Docket Entry 19 ). At the appointed hour Mr. Anderson did not appear and the Court has had no communication whatever with him. Counsel for the Defendants did appear and submitted a proposed initial case management order, which will be filed as Exhibit 1 to this report and recommendation. For the reasons stated below, the Magistrate Judge recommends that this case be dismis sed without prejudice for failure to prosecute and to obey Court orders. Signed by Magistrate Judge Joe Brown on 3/28/2017. (Attachments: # 1 Exhibit 1 - Proposed Initial Case Management Order)(xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
JEFFREY ANDERSON,

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Plaintiff
v.
PUNJAB, INC., et al.,
Defendants

No. 3:16-2635
Chief Judge Sharp/Brown

TO: THE HONORABLE KEVIN H. SHARP
REPORT AND RECOMMENDATION
This matter was set for a case management conference on
March 27, 2017 (Docket Entry 19). At the appointed hour Mr.
Anderson did not appear and the Court has had no communication
whatever with him. Counsel for the Defendants did appear and
submitted a proposed initial case management order, which will be
filed as Exhibit 1 to this report and recommendation.
For

the

reasons

stated

below,

the

Magistrate

Judge

recommends that this case be dismissed without prejudice for
failure to prosecute and to obey Court orders.
BACKGROUND
The Plaintiff Jeffrey Anderson is a frequent plaintiff in
cases alleging violations of the Americans With Disabilities Act
and has normally been represented by an attorney. In this case his
complaint against the Defendants was filed on October 7, 2016
(Docket Entry 1) by Plaintiff’s attorney along with an application
to proceed in forma pauperis (Docket Entry 2), which was approved

(Docket

Entry

6).

Service

of

process

was

obtained

on

all

Defendants.
The initial case management conference was continued at
the request of Plaintiff because it appeared that the parties were
attempting to resolve the matter without further litigation (Docket
Entry 14). Subsequently, Plaintiff’s attorney requested permission
to withdraw (Docket Entry 20) on the grounds that counsel and the
Plaintiff had some irreconcilable differences over issues arising
out of the management and direction of the litigation. This motion
was granted on January 26, 2017 (Docket Entry 22).
In preparing for the case management conference I entered
an order on March 21, 2017 (Docket Entry 28) noting that the
Plaintiff was proceeding pro se and was not accepting mail from the
Court. I noted that his former attorney had advised that in other
cases (Anderson v. Starbucks Corporation, et al., 3:16-CV-2720 and
Anderson v. NFB Partners, LP, et al., 3:15-CV-1466) that the
Plaintiff had cut off contacts with him and that the Plaintiff had
failed to attend the hearing in the 3:16-CV-2720 case. This order
was sent to the Plaintiff by both regular and certified mail and
the Plaintiff was specifically warned that failure to attend the
case management conference without justification would result in a
recommendation that his case be dismissed for failure to prosecute
and obey Court orders. The Plaintiff was directed to contact
counsel

for

the

Defendants

in

order

to

prepare

a

proposed

scheduling order and the Plaintiff was advised that if he was

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having health problems he needed to let the Court know and to
request an appropriate continuance.
In the proposed case management order attached to this
report and recommend as Exhibit 2, counsel for the Defendants
advised that they had a letter hand-delivered to the Plaintiff’s
address on March 21, 2017, requesting that he participate in the
conference call on March 23, 2017. The individual delivering the
letter notified counsel that when he knocked on the door the
Plaintiff yelled out the window to see what he wanted and when he
told him that he had a letter, Plaintiff told the courier to leave
the letter on his porch. Apparently, nothing further was heard from
Plaintiff and he did not contact the Court for a continuance or
attend the hearing.
LEGAL DISCUSSION
A court must be able to control its docket and the Court
cannot proceed if the Plaintiff will not participate in the
litigation process he initiated.
A dismissal with or without prejudice is a drastic
remedy, and before the Court contemplates dismissing an action
under Rule 41(b), the Court must specifically consider:
(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;

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(3) whether the dismissed party was warned that failure
to cooperate could lead to dismissal; and
(4) whether 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 the Plaintiff has been specifically warned
of the consequences of failure to attend the case management
conference. From the report of defense counsel it is clear that he
has refused notification and has declined to participate in any way
in this case. The Defendants cannot begin their defense without the
Plaintiff’s participation. The Plaintiff has been told that if he
is having health problems he needs to let the Court know and he has
had no contact whatever with the Court about the matter.
Under these circumstances the Magistrate Judge believes
that a dismissal under Rule 41(b) is appropriate. The Court must be
able to control its docket and to move cases toward resolution.
While

the

Magistrate

Judge

could

recommend

dismissal

with

prejudice, the Magistrate Judge will only recommend the less
serious sanction of dismissal without prejudice.
RECOMMENDATION
For reasons stated above, the Magistrate Judge recommends
the Plaintiff’s case be dismissed without prejudice for failure to
obey Court orders and to prosecute.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

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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 28th day of March, 2017.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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