Bowden v. City of Middleton, TN et al

Filing 7

ORDER DISMISSING CASE WITHOUT PREJUDICE. Signed by Judge J. Daniel Breen on 12/1/17. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
ANDERSON BOWDEN,
Plaintiff,
v.

No. 1:16-cv-01316-JDB-egb

CITY OF MIDDLETON, TENNESSEE,
et al.,
Defendants.
______________________________________________________________________________
ORDER DISMISSING CASE WITHOUT PREJUDICE
______________________________________________________________________________
On December 12, 2016, the Plaintiff, Anderson Bowden, filed a pro se complaint against
the Defendants, City of Middleton, Tennessee, and its mayor and board of aldermen, alleging
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (Docket Entry ("D.E.") 1.)
The docket reflects that the Clerk of Court provided Bowden with three blank summonses and a
Rule 4 Service Handout. The Plaintiff was advised that he was to present the Clerk with a
properly completed summons for each Defendant and the Clerk would then issue the summonses
to Bowden for service on the Defendants.
No further notations were made on the docket thereafter until, pursuant to Administrative
Order 2013-05, United States Magistrate Judge Edward G. Bryant, on October 31, 2017, issued
an order directing Bowden to show cause within fourteen days why this matter should not be
dismissed in accordance with Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure.
(D.E. 6.) The time for complying with the Court's directive has expired without response by the
Plaintiff.

Rule 4 requires that a summons be served upon each defendant along with a copy of the
complaint. Fed. R. Civ. P. 4(b) & (c)(1). The plaintiff "is responsible for having the summons
and complaint served within the time allowed by Rule 4(m)." Fed. R. Civ. P. 4(c)(1). Rule 4(m)
provides that "[i]f a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice
against that defendant or order that service be made within a specified time." Fed. R. Civ. P.
4(m). If, however, "the plaintiff shows good cause for the failure, the court must extend the time
for service for an appropriate period."

Id.

"Establishing good cause is the plaintiff's

responsibility and necessitates a demonstration of why service was not made within the time
constraints." Bailey v. Ingram, No. 16-6707, 2017 WL 5644368, at *2 (6th Cir. Aug. 30, 2017)
(quoting Nafziger v. McDermott Int'l, Inc., 467 F.3d 514, 521 (6th Cir. 2006)) (internal
alterations & quotation marks omitted). The provisions of Rule 4 apply to pro se plaintiffs in the
same measure as to those who are represented by counsel. Every v. Brennan, No. 3:16-cv-710,
2017 WL 4582340, at *2 (E.D. Tenn. Oct. 12, 2017).
In order to comply with Rule 4(m), Bowden must have served the Defendants by March
12, 2017. There is no indication on the docket that service was effected by that date or since.
Plaintiff was advised in the October 31, 2017, order that failure to show cause for his lack of
timely service would result in dismissal of this matter under Rule 4(m). In failing to respond to
the show cause order, he has offered the Court nothing upon which to base an extension of time
for service. Thus, it is the opinion of this Court that dismissal is appropriate under Rule 4(m).
Moreover, Rule 41(b) permits dismissal "[i]f the plaintiff fails to prosecute or to comply
with [the Federal Rules of Civil Procedure] or a court order." Fed. R. Civ. P. 41(b). Four factors
are generally relevant to the Court's consideration under the Rule:

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(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.
United States v. $506,069.09 Seized from First Merit Bank, 664 F. App'x 422, 427 (6th Cir.
2016) (quoting Carpenter v. City of Flint, 723 F.3d 700, 703-04 (6th Cir. 2013)), cert. denied,
137 S. Ct. 2249 (2017).
Under the first consideration, a party seeking to avoid dismissal must show his failure to
comply with the orders of the court was the result of inability to comply, not willfulness or bad
faith. Atwater v. Bank of N.Y. Mellon Trust Co., N.A., 586 F. App'x 222, 222-23 (6th Cir. 2014)
(per curiam). No such showing has been made here. As to the second, there does not appear to
be any prejudice to the Defendants because it is unclear they were even aware the lawsuit had
been filed. See Shavers v. Bergh, 516 F. App'x 568, 570 (6th Cir. 2013) (per curiam) ("A
defendant is prejudiced by the plaintiff's conduct where the defendant wasted time, money, and
effort in pursuit of cooperation which the plaintiff was legally obligated to provide.") Prior
notice in accordance with the third factor "is a key consideration when determining whether a
district court abuses its discretion in dismissing a case pursuant to Rule 41(b)." Prime Finish,
LLC v. ITW Deltar IPAC, 608 F. App'x 310, 315 (6th Cir. 2015) (quoting Stough v. Mayville
Cmty. Schs., 138 F.3d 612, 615 (6th Cir. 1998)) (alterations omitted). Prior notice is present in
the instant matter, as the Plaintiff was clearly warned that failure to respond to the show cause
order would result in dismissal. See Atwater, 586 F. App'x at 223 (third factor shown where
plaintiff was warned in a show cause order that failure to respond would result in dismissal).
While courts are not required to always articulate their considerations of lesser sanctions under

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the fourth factor, id., the undersigned can conceive of no lesser sanction it could impose on the
Plaintiff under the circumstances of this case that would move this matter forward.
Simply put, Bowden appears to have filed his complaint and walked away from this case,
even going so far as to utterly ignore the Court's admonition that failure to respond to its show
cause order would result in dismissal. The Court's consideration of the foregoing factors,
therefore, supports dismissal under Rule 41(b). See id. at 222-23 (affirming district court's Rule
41(b) dismissal where plaintiff had shown no inability to comply with court's order and had been
warned failure to respond to show cause order would result in dismissal); Fuller v. Gerth, 468 F.
App'x 587, 588 (6th Cir. 2012) (per curiam) (district court's dismissal of case upheld where
plaintiff simply ignored court order after being warned a failure to comply risked dismissal of his
complaint).
For the reasons articulated herein, the complaint is hereby DISMISSED without
prejudice.
IT IS SO ORDERED this 1st day of December 2017.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

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