Garth v. Hommrich et al

Filing 103

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that Garth's claims against the remaining defendants be dismissed without prejudice for failure to prosecute under Rule 41(b). The Court will address Brown's motion to determine the right to control the claims of the minor children (Doc. No. 100) separately. Signed by Magistrate Judge Alistair Newbern on 1/3/2020. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

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

TRACY MARIE GARTH, et al.,
Case No. 3:17-cv-00758
Plaintiffs,
v.

Chief Judge Waverly D. Crenshaw, Jr.
Magistrate Judge Alistair E. Newbern

BONNIE HOMMRICH, et al.,
Defendants.

To: The Honorable Waverly D. Crenshaw, Jr., Chief District Judge
REPORT AND RECOMMENDATION
Plaintiff Tracy Marie Garth filed this action with counsel on April 25, 2017, asserting
various claims under federal and state law on behalf of herself and her minor children that stem
from her arrest on April 25, 2016, and the subsequent placement of her children in state custody.
(Doc. No. 1.) In September 2017, Brandon Brown, the minor children’s father, motion to intervene
in the action arguing that, as the children’s custodial parent, he has the right to control their claims.
(Doc. No. 32.) The Court granted Brown’s motion to intervene as unopposed. (Doc. No. 50.) Garth
later filed a motion arguing that she has the superior right to assert the children’s claims. (Doc.
No. 57.) Almost two years later, the Court has yet to resolve this threshold question due to Garth’s
criminal prosecution, which concluded August 12, 2019, and, more recently, Garth’s failure to
respond to this Court’s orders.
On September 9, 2019, after the conclusion of Garth’s criminal proceedings, the Court
ordered Garth and Brown to file renewed motions for the right to control the minor children’s
claims by November 15, 2019. Garth did not file a renewed motion. On October 23, 2019, the

Court granted Garth’s counsel’s motion to withdraw, ordering Garth to file a notice by November
7, 2019, informing the Court whether she had retained new counsel or would be proceeding pro
se. (Doc. Nos. 98, 99). Garth did not respond to that order. On November 20, 2019, the Court
expressed concern that Garth had abandoned her claims, and therefore ordered her to show cause
by December 5, 2019, why her claims should not be dismissed for failure to prosecute under
Federal Rule of Civil Procedure 41(b). (Doc. No. 102.) Because Garth has not responded to that
order, and for the reasons below, the Magistrate Judge will recommend that her claims be
dismissed without prejudice under Rule 41(b) for failure to prosecute.
I.

Factual and Procedural Background
Garth initiated this action by filing a complaint under 42 U.S.C. § 1983, the Tennessee

Governmental Tort Liability Act (TGTLA), Tenn. Code Ann. § 29-20-101 et seq., and Tennessee
common law. (Doc. No. 1.) According to the complaint’s allegations, which are taken as true at
this stage of the litigation, Garth pulled into a gas station in Franklin, Tennessee, around midnight
on April 25, 2016. (Id.) She was traveling from her home in Alabama with her minor children,
Plaintiffs ACB and CAB, to shop in Nashville. (Id.) Defendant Sgt. James Phillips of the Franklin
Police Department approached Garth at the station and accused her of “passing a dump truck,
striking an orange traffic cone, failing to stop for law enforcement, and speeding on I-65 North.”
(Id. at PageID# 7, ¶ 15.) Garth was arrested and taken to the Williamson County Jail, where she
was not allowed to speak with an attorney and was “threatened with tasing, harassed, intimidated,
[and] strip searched . . . .” (Id. at PageID# 10, ¶ 35.)
When their mother was arrested, ACB and CAB were left in the custody of Defendant
Police Officer Adam Cowen, who transported them to the Franklin police station. (Doc. No. 1.)
Before a Tennessee of Department and Children’s Services (DCS) investigator arrived, ACB
“suffered disfiguring burns to his mouth, chin and chest” caused by hot water. (Id. at PageID# 12,
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¶ 42.) ACB was taken to Vanderbilt Children’s Hospital, where he received emergency treatment.
He and CAB were then placed in foster care in Tennessee. (Doc. No. 1.)
Garth was released from jail on May 10, 2016, and began what became a prolonged battle
with DCS to regain custody of ACB and CAB. (Id.) DCS allowed Garth only eight hours of
supervised visitation with her children per month and sued her for child support. (Id.) ACB and
CAB were released to the custody of their father in October 2016. (Id.) Garth was ultimately
indicted on one count of reckless endangerment with a deadly weapon; two counts of evading
arrest while operating a motor vehicle; two counts of travel on a closed road, speeding, violation
of a no passing zone, and obedience to required traffic control device; and two counts of violation
of the children restraint law. (Id.)
Garth’s complaint asserts the following claims on behalf of herself and ACB and CAB:
o Claims under § 1983 against DCS; former DCS Commissioner Bonnie
Hommrich; DCS employees Emily Kirby, Sarah Fischer, Katherine Nabors,
and Sarah Grey McCroskey; and four unknown DCS employees for
violations of the First, Fourth, and Fourteenth Amendments;
o Claims under § 1983 against the City of Franklin; Franklin Police Officers
Cowen, James Phillips, Charles Richards, and Jesus Coreno; and four
unknown employees of the City of Franklin for violations of the Fourth,
Eighth, and Fourteenth Amendments;
o Claims under § 1983 against Williamson County; former Williamson
County Sheriff Jeff Long; Williamson County Deputy Sheriffs Evan Bohn,
Brandon Rowe, Amber Pater, Cassie Skinner, and Danielle Telkamp; and
four unknown employees of Williamson County for violations of the
Fourth, Eighth, and Fourteenth Amendments;
o A claim under the TGTLA against the City of Franklin for negligent
policing and false imprisonment; and
o A claim under the TGTLA against Williamson County for negligence.
(Doc. No. 1.) Garth, ACB, and CAB each seek $2.5 million in compensatory damages, punitive
damages, and fees and costs. (Id.)

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Shortly after initiating this action, Garth’s counsel filed a motion to withdraw (Doc.
No. 14), which the Court granted (Doc. No. 17). Garth’s new counsel entered an appearance on
July 13, 2017, but had not yet associated local counsel as required by the Court’s Local Rules.
(Doc. No. 18.) In response, all of the defendants except Bohn, Skinner, Telkamp, and the unknown
employees of DCS, the City of Franklin, and Williamson County, filed a motion for an extension
of time to respond to the complaint until fourteen days after Garth’s counsel had associated local
counsel and complied with other threshold requirements of the Local Rules. (Doc. No. 19.) The
Court granted that motion. (Doc. No. 20.)
The Court held a case management conference on August 18, 2017, after Brown filed a
motion to intervene. (Doc. Nos. 26, 29.) The Court found that Bohn, Skinner, and Telkamp had
not been served and had not appeared and adjourned the conference to allow for their service.
(Doc. No. 29.) The Court ordered Garth to move for the initial case management conference to be
reset within seven days after all defendants appeared. (Id.) The Court also ordered Brown to file
an amended motion to intervene by September 1, 2017, and stayed all other deadlines, including
the deadline for the defendants to respond to Garth’s complaint, pending the conclusion of the
resumed case management conference. (Id.)
Not long after the Court entered that order, Garth terminated her relationship with her
second attorney. After filing two procedurally defective motions to withdraw that were denied
(Doc. Nos. 30, 31, 36, 38), Garth’s counsel filed a third motion to withdraw (Doc. No. 49) that
was granted (Doc. No. 59). By that time, Garth’s third attorney had already entered an appearance.
(Doc. No. 33.)
Brown filed a timely amended motion to intervene, arguing that, as the sole custodial parent
of ACB and CAB, he is entitled to pursue claims on their behalf. (Doc. No. 32.) Garth did not

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respond to that motion, and the Court ultimately granted it as unopposed, determining only that
Brown had a right to intervene in this action. (Doc. No. 50.) On December 6, 2017, Bohn, Skinner,
and Telkamp filed a motion to dismiss for failure to effect service of process under Federal Rules
of Civil Procedure 12(b)(4) and (5). (Doc. Nos. 46, 47.)
The Court held a case management conference on December 19, 2017, at which the parties
agreed to a briefing schedule to address two threshold issues: the pending motion to dismiss and
the question of who would have the right to pursue claims on behalf of ACB and CAB. (Doc.
No. 52.) The Court ordered Garth to file any response in opposition to the motion to dismiss by
December 29, 2017. (Id.) The Court also ordered Garth and Brown to file motions regarding their
rights to bring claims on behalf of the minor plaintiffs by January 19, 2018. (Id.) The parties timely
briefed those issues. (Doc. Nos. 54–58.)
On May 31, 2018, the Court held another case management conference. (Doc. No. 73.)
Garth’s counsel informed the Court that Garth’s “trial on the criminal charges underlying the
claims in this civil action [would] be held on July 9, 2018.” (Id.) The parties agreed that the claims
in this matter would be affected by the result of the trial and the Court stayed this action pending
resolution of Garth’s criminal charges. (Id.) The Court ordered Garth’s counsel to file a notice of
the trial’s resolution within seven days of the judgment. (Id.)
Garth’s trial did not take place on July 9, 2018, and was instead rescheduled and postponed
several times over the course of the next year. (Doc. Nos. 74, 83, 85, 87.) While the case was
stayed, the Magistrate Judge recommended that Bohn, Skinner, and Telkamp’s motion to dismiss
be granted. (Doc. No. 80.) The Court adopted the report and recommendation and dismissed all
claims against those defendants without prejudice. (Doc. No. 82.) On August 13, 2019, Defendants
City of Franklin, Phillips, Richards, Cowen, and Coreno filed a notice stating that Garth had

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entered into six negotiated plea agreements resolving the criminal charges against her. (Doc.
Nos. 88, 89.) Those defendants also filed a motion to lift the stay and schedule a case management
conference. (Doc. No. 90.) The Court granted that motion, set a case management conference for
September 9, 2019, and terminated Garth’s and Brown’s motions to determine the right to control
the claims of the minor plaintiffs without prejudice to refiling, finding that circumstances had
changed considerably since the motions were originally filed. (Id.)
Garth’s third counsel filed a procedurally improper motion to withdraw on September 4,
2019 (Doc. No. 94), which the Court denied (Doc. No. 95). At the September 9, 2019, case
management conference, Garth’s counsel informed the Court that he intended to file a renewed
motion to withdraw. (Doc. No. 97.) The Court ordered Garth and Brown to file any renewed
motions for the right to control the claims of the minor plaintiffs by November 15, 2019. (Id.) That
deadline was intended to provide Garth “additional time . . . to either obtain new counsel or proceed
pro se.” (Id. at PageID# 437, ¶ D.1.) Garth’s counsel filed an amended motion to withdraw (Doc.
No. 98), which the Court granted on October 23, 2019 (Doc. No. 99). The Court ordered Garth to
file a notice by November 7, 2019, informing the Court whether she had retained new counsel or
intended to proceed pro se. (Doc. No. 99.)
Garth did not respond to that order, missed the November 15, 2019 deadline to file a motion
to control the claims of the minor plaintiffs, and failed to respond in opposition to Brown’s timely
filed motion (Doc. No. 100). On November 20, 2019, the Court entered an order finding that “[f]or
nearly two years, this case has been stymied by the determination of whether . . . Garth or . . .
Brown has the right to assert civil rights claims raised on behalf of their minor children” and that
Garth was delaying resolution of that question by failing to inform the Court of the status of her
representation. (Doc. No. 102, PageID# 514.) The Court found that Garth appeared to have

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abandoned her claims and ordered her to show cause by December 5, 2019, why her claims should
not be dismissed under Federal Rule of Civil Procedure 41(b) for failure to prosecute. (Doc. No.
102.) The Court warned Garth that her failure to respond to the order could result in dismissal of
her claims. (Id.) Garth has not responded.
II.

Legal Standard
Federal Rule of Civil Procedure 41(b) “confers on district courts the authority to dismiss
an action for failure of a plaintiff to prosecute the claim or to comply with the Rules or any order
of the Court.” Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 736 (6th Cir. 2008) (citing
Knoll v. AT&T, 176 F.3d 359, 362–63 (6th Cir. 1999)); see also Link v. Wabash R.R. Co., 370 U.S.
626, 630 (1962) (recognizing “the power of 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”); Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (“It is well settled
that a district court has the authority to dismiss sua sponte a lawsuit for failure to prosecute.”).
Dismissal for failure to prosecute is a tool for district courts to manage their dockets and avoid
unnecessary burdens on opposing parties and the judiciary. See Schafer, 529 F.3d at 736 (quoting
Knoll, 176 F.3d at 363). The Sixth Circuit therefore affords district courts “substantial discretion”
regarding decisions to dismiss for failure to prosecute. Id.
Courts look to four factors for guidance when determining whether dismissal under
Rule 41(b) is appropriate: (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. Knoll, 176 F.3d at 363 (citing Stough v. Mayville Cmty. Sch., 138 F.3d 612,
615 (6th Cir. 1998)). Under Sixth Circuit precedent, “none of the factors is outcome dispositive,”
but “a case is properly dismissed by the district court where there is a clear record of delay or
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contumacious conduct.” Id. (citing Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980));
see also Muncy v. G.C.R., Inc., 110 F. App’x 552, 555 (6th Cir. 2004) (finding that dismissal with
prejudice “is justifiable in any case in which ‘there is a clear record of delay or contumacious
conduct on the part of the plaintiff’” (quoting Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 591
(6th Cir. 2001))). Because dismissal without prejudice is a relatively lenient sanction as compared
to dismissal with prejudice, the “controlling standards should be greatly relaxed” for Rule 41(b)
dismissals without prejudice where “the dismissed party is ultimately not irrevocably deprived of
his [or her] day in court.” Muncy, 110 F. App’x at 556 (citing Nwokocha v. Perry, 3 F. App’x 319,
321 (6th Cir. 2001)); see also M.D. Tenn. R. 41.01 (dismissal of inactive cases) (allowing Court
to summarily dismiss without prejudice “[c]ivil suits that have been pending for an unreasonable
period of time without any action having been taken by any party”).
III.

Analysis
Given Garth’s failure to respond to the Court’s order requiring her to state the status of her

representation, she is presumed to be proceeding pro se. Dismissal of this action is appropriate
under Rule 41(b) because the four relevant factors, considered under the “relaxed” standard for
dismissals without prejudice, show a record of delay by Garth.
A.

Bad Faith, Willfulness, or Fault

A plaintiff’s actions demonstrate bad faith, willfulness, or fault where they “display either
an intent to thwart judicial proceedings or a reckless disregard for the effect of [plaintiff’s] conduct
on those proceedings.” Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005) (quoting Mulbah,
261 F.3d at 591)). Garth managed to retain counsel three times and actively pursued this litigation
for more than two years. Her failure to respond to the Court’s show-cause order and Brown’s
motion to control the minor plaintiffs’ claims therefore appears to be a problem of her own making.
Even if these failures were not motivated by bad faith, her inaction still reflects “willfulness and
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fault” for purposes of Rule 41(b). Hatcher v. Dennis, No. 1:17-cv-01042, 2018 WL 1586235, at
*1 (W.D. Tenn. Mar. 30, 2018); see id. (explaining that, “[e]ven where there is no clear evidence
of bad faith, failure to respond to a show cause order is indicative of willfulness and fault”); see
also Malott v. Haas, No. 16-13014, 2017 WL 1319839, at *2 (E.D. Mich. Feb. 8, 2017) (finding
that plaintiff was at fault for failing to respond to court’s show-cause orders), report and
recommendation adopted by 2017 WL 1244991 (E.D. Mich. Apr. 5, 2017). This factor supports
dismissal.
B.

Prejudice

The Sixth Circuit has held that “[a] defendant is prejudiced by a plaintiff’s dilatory conduct
if the defendant is ‘required to waste time, money, and effort in pursuit of cooperation which [the
plaintiff] was legally obligated to provide.’” Carpenter, 723 F.3d at 707 (second alteration in
original) (quoting Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997)); see also
Schafer, 529 F.3d at 739 (same). Such prejudice typically arises in the discovery context. See, e.g.,
Harmon, 110 F.3d at 368 (finding prejudice where plaintiff failed to respond to defendant’s
interrogatories and a related motion to compel); Wright v. City of Germantown, No. 11-02607,
2013 WL 1729105, at *2 (W.D. Tenn. Apr. 22, 2013) (finding prejudice where defendant
“expended time and money pursuing [plaintiff’s] required initial disclosures and deposition
testimony”). Notably, time and effort spent on “typical steps in the early stages of litigation[,]”
such as answering a complaint or filing pretrial motions to advance the defendant’s position, are
not actions “necessitated by any lack of cooperation” and therefore do not weigh in favor of
dismissal for failure to prosecute. Schafer, 529 F.3d at 739. The Sixth Circuit explained in Schafer
v. City of Defiance Police Department that “[i]f such efforts . . . [were] alone sufficient to establish
prejudice,” for the purpose of Rule 41(b), “then every defendant who answers a complaint and

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responds minimally to a lawsuit would be able to claim prejudice[,]” a “result [that] would defy
common sense.” 529 F.3d at 740.
The defendants in this action have not been forced to expend time and resources as a result
of Garth’s failure to prosecute. This factor weighs against dismissal.
C.

Prior Notice

Whether a party was warned that failure to cooperate could lead to dismissal “is a ‘key
consideration’” in the Rule 41(b) analysis. Schafer, 529 F.3d at 740 (quoting Stough, 138 F.3d at
615). Here, the Court warned Garth that failure to respond to the show-cause order could lead to
dismissal of her claims. (Doc. No. 102.) This factor supports dismissal. Schafer, 529 F.3d at 740;
see also Wright, 2013 WL 1729105, at *3 (granting motion to dismiss for failure to prosecute
where Court’s orders to show cause warned plaintiff “that her conduct could result in dismissal”).
D.

Appropriateness of Other Sanctions

The less-drastic sanction of dismissal without prejudice is available and appropriate here.
Dismissal without prejudice balances the Court’s interest in “sound judicial case and docket
management” with “the public policy interest in the disposition of cases on their merits.” Muncy,
110 F. App’x at 557 n.5; see also Mulbah, 261 F.3d at 590–91. Such a sanction is particularly
appropriate in cases of prolonged inactivity and where, as here, the plaintiff appears pro se. See
Schafer, 529 F.3d at 737 (noting that courts apply the four-factor test “more stringently in cases
where the plaintiff’s attorney’s conduct is responsible for the dismissal” (quoting Harmon, 110
F.3d at 367)).
IV.

Recommendation
For the foregoing reasons, the Magistrate Judge RECOMMENDS that Garth’s claims

against the remaining defendants be dismissed without prejudice for failure to prosecute under

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Rule 41(b). The Court will address Brown’s motion to determine the right to control the claims of
the minor children (Doc. No. 100) separately.
Any party has fourteen days after being served with this report and recommendation to file
specific written objections. Failure to file specific objections within fourteen days of receipt of this
report and recommendation can constitute a waiver of appeal of the matters decided. Thomas v.
Arn, 474 U.S. 140, 155 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004). A party
who opposes any objections that are filed may file a response within fourteen days after being
served with the objections. Fed. R. Civ. P. 72(b)(2).
Entered this 3rd day of January, 2020.

____________________________________
ALISTAIR E. NEWBERN
United States Magistrate Judge

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