Kennedy v. State Farm Fire and Casualty Company
REPORT AND RECOMMENDATION: Considering the above four factors, the Magistrate Judge RECOMMENDS that this action 1 be DISMISSED WITHOUT PREJUDICE under Rule 41(b) for Kennedy's failure to prosecute. Any party has fourteen days after being s erved with this Report and Recommendation to file specific written objections. Signed by Magistrate Judge Alistair Newbern on 9/15/2022. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ln)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
Case No. 3:21-cv-00203
STATE FARM FIRE AND CASUALTY
Judge Eli J. Richardson
Magistrate Judge Alistair E. Newbern
The Honorable Eli J. Richardson, District Judge
REPORT AND RECOMMENDATION
On August 15, 2022, the Court ordered pro se Plaintiff Tatiana Kennedy to show cause by
August 29, 2022, why the Magistrate Judge should not recommend that this action be dismissed
for failure to prosecute after Kennedy failed to participate in a pro bono mediation ordered by the
Court. (Doc. No. 32.) Kennedy has not responded to the Court’s show-cause order. For the reasons
that follow, the Magistrate Judge will recommend that the Court dismiss this action without
prejudice under Federal Rule of Civil Procedure 41(b).
Factual and Procedural Background
Kennedy filed a complaint, with the assistance of counsel, in the 20th Judicial District
Circuit Court for Davidson County, Tennessee, alleging claims for breach of contract and bad faith
refusal to pay under Tenn. Code Ann. § 56-7-105 against Defendant State Farm Fire and Casualty
Company. (Doc. No. 1-1.) State Farm removed the action to this Court (Doc. No. 1) and answered
Kennedy’s complaint (Doc. No. 10).
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After the Court entered an initial case management order (Doc. No. 13), Kennedy’s counsel
filed an unopposed motion to withdraw (Doc. No. 21), which the Court granted (Doc. No. 23). The
Court ordered Kennedy to “secure new counsel to file a [n]otice of [a]ppearance or file a notice
with this Court that she intends to represent herself pro se” by May 6, 2022. (Doc. No. 23,
PageID# 141, ¶ 2.) Kennedy did not do so. On May 26, 2022, the Court ordered Kennedy to show
cause by June 9, 2022, why the Magistrate Judge should not recommend that the Court dismiss
this action for Kennedy’s failure to prosecute her claims. (Doc. No. 26.) The Court warned
Kennedy that failure to respond to the show-cause order would likely result in a recommendation
of dismissal. (Id.)
On June 6, 2022, the Court received a letter from Kennedy stating that she intended to
secure new counsel, had not abandoned her claims, and was undergoing serious medical treatment.
(Doc. No. 27.) She further stated: “As not to hold up the court, I’d like to offer any type of
mediation that will free up the court and to allow my recovery[.]” (Id. at PageID# 153.) On June
28, 2022, State Farm filed a motion to dismiss under Rule 41(b) for failure to prosecute, arguing
that Kennedy had not complied with the Court’s orders. 1 (Doc. No. 28.)
The Court found that Kennedy’s letter was “an adequate response to its show-cause order”
and further construed the letter “as a request for appointment of a pro bono mediator to assist in
reaching an efficient resolution of [t]his matter.” (Doc. No. 29, PageID# 159.) The Court identified
a pro bono mediator and ordered the parties “to participate in a mediation” and to contact the
State Farm did not file a supporting memorandum of law with its motion as required by
this Court’s Local Rules. See M.D. Tenn. R. 7.01(a)(2) (motion and supporting memorandum)
(providing that “every motion that may require the resolution of an issue of law must be
accompanied by a separately filed memorandum of law citing supporting authorities . . .”).
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mediator “within 7 days . . to begin [ ] the process of scheduling the mediation.” (Id. at
On August 15, 2022, the mediator filed a report informing the Court that Kennedy had not
responded to communications sent by regular mail and certified mail notifying her that the
mediation was scheduled for 9:00 a.m. on August 10, 2022, at the Nashville Bar Association
offices in Nashville, Tennessee, and had not appeared for the mediation. (Doc. No. 31.) The report
further stated that counsel for State Farm contacted the mediator, provided the defendant’s
mediation statement as requested, and drove to Nashville from Knoxville, Tennessee, to attend the
mediation, and that the mediator terminated the mediation after waiting an hour for Kennedy to
On the same day the mediator filed his report, the Court found that Kennedy’s failure to
participate in the mediation without communicating with the mediator or the Court violated the
Court’s order directing the parties to mediate. (Doc. No. 32.) The Court therefore ordered Kennedy
to show cause by August 29, 2022, why the Court should not dismiss this action for Kennedy’s
failure to prosecute her claims. (Id.) Kennedy has not responded to the Court’s show-cause order.
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.”).
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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. (quoting Knoll, 176 F.3d at 363).
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
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”).
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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
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). There is no indication that bad faith motivated Kennedy’s failure to
participate in mediation and failure to respond to the Court’s most recent show-cause order.
However, “[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” 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). The first factor
therefore weighs in favor of dismissal.
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
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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
responds even minimally to a lawsuit would be able to claim prejudice[,]” a “result [that] would
defy common sense.” Id. at 740.
Here, counsel for State Farm prepared a mediation statement and traveled from Knoxville
to Nashville to attend the court-ordered mediation that was then cancelled because of Kennedy’s
failure to appear. Stare Farm was therefore required to waste time, money, and effort with respect
to the mediation, and the prejudice factor therefore supports dismissal. See Oleoproteinas Del
Sureste, S.A. v. French Oil Mill Mach. Co., 202 F.R.D. 541, 547 (S.D. Ohio 2000) (finding that
prejudice factor weighed in favor of dismissal for failure to prosecute where defendants “incurred
expenses on two occasions to prepare for mediation sessions, only to have the [p]laintiffs cancel
them at the last minute”); see also Pealer v. Lowe’s Home Ctrs., LLC, No. 2:18-CV-194, 2021 WL
137943, at *3 (E.D. Tenn. Jan. 14, 2021) (finding that prejudice factor weighed in favor of
dismissal for failure to prosecute where, among other things, “[d]efendant’s counsel traveled from
Nashville to Knoxville to take [plaintiff’s] deposition” and plaintiff did not appear).
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). The Court notified Kennedy that it was contemplating dismissal because of her “failure to
participate in the pro bono mediation without any communication to [the mediator] or the Court”
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and ordered her to show cause “why the Court should not dismiss this action for her failure to
prosecute her claims.” (Doc. No. 32, PageID# 166–67.) This factor supports dismissal.
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)).
Considering the above four factors, the Magistrate Judge RECOMMENDS that this action
be DISMISSED WITHOUT PREJUDICE under Rule 41(b) for Kennedy’s failure to prosecute.
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 15th day of September, 2022.
ALISTAIR E. NEWBERN
United States Magistrate Judge
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