Madondo v. Smyrna Police Department et al

Filing 29

ORDER: Before the Court is a Report and Recommendation from Magistrate Judge Frensley that recommends the Court grant Defendant's Second Motion to Dismiss for lack of prosecution and failure to comply with court order (Doc. No. 27 ). No objec tions have been filed. Accordingly, the Report and Recommendation (Doc. No. 28 ) is APPROVED AND ADOPTED. Defendant's Motion to Dismiss (Doc. No. 27 ) is GRANTED. This case is DISMISSED WITH PREJUDICE pursuant to Federal Rule of Civil Proce dure 41. This is a final order. The Clerk shall close the file. The trial scheduled for August 27, 2019 is CANCELED. Signed by Chief Judge Waverly D. Crenshaw, Jr on 8/13/2019. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ANGELINE SHORAYI MADONDO,
Plaintiff,
v.
POLICE OFFICER R. EDWARDS,
Defendant.

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NO. 3:18-cv-00456

ORDER
Before the Court is a Report and Recommendation from Magistrate Judge Frensley that
recommends the Court grant Defendant’s Second Motion to Dismiss for lack of prosecution and
failure to comply with court order (Doc. No. 27). No objections have been filed.
The tortured history of this matter is amply set forth by the Magistrate Judge in the Report
and Recommendation. (See id. at 1-3.) As explained there, Plaintiff has repeatedly failed to
participate in the prosecution of this action and has disobeyed multiple court orders. (Id.) The
Magistrate Judge previously recommended dismissal of this action on these same grounds, but at
the eleventh hour Plaintiff requested additional time to secure counsel. Out of an abundance of
caution, the Court granted Plaintiff 40 days to secure counsel and obey court orders to comply with
outstanding discovery requests. As the Magistrate Judge now explains, Plaintiffs has not secured
counsel since that time, has been completely non-responsive, and has not complied with court
orders to respond to discovery. Defendant again asks to be freed from this year-long litigation.
Courts generally consider four factors when determining whether to dismiss a case under
Rule 41: (1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the
adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed party was

warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions
were imposed or considered before dismissal of the action. Hall v. City of Williamsburg, 768 F.
App’x 366, 380 (6th Cir. 2019) (citing Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 589 (6th Cir.
2001)). However, none of the four factors are “outcome dispositive.” Id. (citing Schafer v. City of
Defiance Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008)). Instead, we “focus on whether ‘there
[was] a clear record of delay or contumacious conduct.’” Id.
The record here, as explained by the Magistrate Judge, shows that Plaintiff has been
willfully and in bad faith defiant of the most basic requirements of the discovery process, and has
disobeyed related court orders, with the result of unfairly wasting Defendant’s time and money.
This has culminated in Plaintiff’s total disregard of a unique final opportunity afforded to her by
the Court after the Magistrate Judge first recommended dismissal of this case. Plaintiff has been
expressly warned on two occasions of the potential consequences of his behavior, up to and
including the possibility of dismissal, and has chosen to ignore those warnings. The Court agrees
with the Magistrate Judge that all factors weigh in favor of dismissing this case. The Court
attempted to give Plaintiff the benefit of the doubt, but Plaintiff has simply ignored instructions
and provided no explanation for her contumacious behavior. See Universal Health Group v.
Allstate Ins. Co., 703 F.3d 953, 956 (6th Cir. 2013) (affirming dismissal against party whose
“conduct violated the rules of civil procedure and common courtesy alike”).
Given Plaintiff’s behavior, under Federal Rule of Civil Procedure 41, the Court “has
discretion to dismiss th[is] case and [i]s not required to impose a penalty short of dismissal.” Hall,
768 F. App’x at 381 (citing Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997)). For
the reasons discussed in the Report and Recommendation and herein, the Court agrees with the
Magistrate Judge that the most appropriate disposition of this case is dismissal with prejudice

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under Rule 41. Accordingly, the Report and Recommendation (Doc. No. 28) is APPROVED
AND ADOPTED. Defendant’s Motion to Dismiss (Doc. No. 27) is GRANTED. This
case is DISMISSED WITH PREJUDICE pursuant to Federal Rule of Civil Procedure 41.
This is a final order. The Clerk shall close the file. The trial scheduled for August 27, 2019
is CANCELED.
IT IS SO ORDERED.

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WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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