Ike et al v. Quantum Servicing Corporation et al

Filing 23

ORDER granting 15 Motion to Dismiss. Signed by Judge Samuel H. Mays, Jr on 08/20/2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

MIKE O. IKE and EARLENE G.
IKE,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
QUANTUM SERVICING CORPORATION,
WMC MORTGAGE, LLC, and WILSON
& ASSOCIATES, P.L.L.C.,
Defendants.

No. 11-2914

ORDER GRANTING DEFENDANT QUANTUM’S MOTION TO DISMISS

Before

the

Court

is

Defendant

Quantum

Servicing

Corporation’s (“Quantum”) May 24, 2012 Motion to Dismiss for
failure to prosecute.

(Renewed Mot., ECF No. 15.)

Plaintiffs

Mike O. Ike and Earlene G. Ike (collectively, the “Ikes”) have
not

responded.

October

24,

Quantum

2011.

filed

(Mot.,

ECF

a

prior
No.

Motion

6.)

For

to
the

Dismiss

on

following

reasons, Quantum’s May 24 Motion is GRANTED.
I.

Background

The Court entered a Show Cause Order on December 12, 2011,
giving the Ikes fourteen days to file a response to Quantum’s
October 24 motion.

(ECF No. 11.)

The Ikes responded to the

Show Cause Order on April 16, 2012, four months after it was

filed.

(Resp., ECF No. 13.)

In their Response, the Ikes blamed

their failure to respond on their counsel.

(Resp. ¶ 2.)

The

Ikes

to

the

stated

that

representation.

new

counsel

had

agreed

undertake

(Id. ¶ 6.)

Quantum renewed its Motion to Dismiss on May 24.
did not respond.

The Ikes

The Court entered a second Show Cause Order on

July 3, 2012, giving the Ikes fourteen days to respond.
No. 16.)
failure

(ECF

The July 3 Order to Show Cause warned the Ikes that a
to

timely

respond

could

result

dismissed for failure to prosecute.

in

their

case

being

The Ikes have not

(Id.)

responded, and the time for doing so has passed.
II.

Standard of Review

Rule

41(b)

of

the

Federal

Rules

of

Civil

Procedure

provides, “[i]f the plaintiff fails to prosecute or to comply
with these rules or a court order, a defendant may move to
dismiss

the

dismissal

order

subdivision
merits.”

action

(b)

or

states
.

.

.

any

claim

against

otherwise,
operates

as

a

it.

dismissal
an

Unless
under

adjudication

on

the
this
the

See also Harmon v. CSX Transp., Inc., 110 F.3d 364,

366 (6th Cir. 1997).

“This measure is available to the district

court as a tool to effect management of its docket and avoidance
of unnecessary burdens on the tax-supported courts and opposing
parties.”
(brackets

Knoll v. AT&T, 176 F.3d 359, 363 (6th Cir. 1999)
and

internal

quotation
2

markets

omitted);

see

also

Shafer v. City of Defiance Police Dep’t, 529 F.3d 731, 736 (6th
Cir. 2008).
must

Before dismissing an action under Rule 41, courts

consider:

(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;

imposed

(4)

whether

considered

or

and

before

less

drastic

dismissal

sanctions

of

the

were

action.

Overstreet v. Roane Cnty. Bd. of Educ., No. 3:08-cv-401, 2008
U.S. Dist. LEXIS 100607, at *4-5 (E.D. Tenn. Dec. 12, 2008)
(citations omitted).

These factors “‘have been applied more

stringently in cases where the plaintiff’s attorney’s conduct is
responsible

for

the

dismissal.’”

Shafer,

529

F.3d

at

737

(quoting Harmon, 110 F.3d at 367).
III. Analysis
All four factors weigh in favor of dismissal.

“[I]t is

clear that failure to prosecute has resulted from the fault of
plaintiffs’ counsel.”
at *5.

Overstreet, 2008 U.S. Dist. LEXIS 100607,

Not only was the Ikes’ original counsel overdue in

responding

to

Quantum’s

original

counsel has not responded.

motion,

but

the

Ikes’

new

District courts in this circuit have

dismissed causes for failure to prosecute when plaintiffs were
dilatory

in

honoring

show

cause

deadlines.

See,

e.g.,

Overstreet, 2008 U.S. Dist. LEXIS 100607, at *5-6 (“The Order to
3

Show Cause issued by the court granted counsel an opportunity to
respond to the motions to dismiss or to move the court, upon an
issuance of good cause, for an extension of time in which to
respond. Counsel continued to neglect this action even after the
issuance

of

the

Order

to

Show

Cause

afforded

counsel

the

opportunity to rectify the failure to respond.”).
Quantum
prosecute.
in

has

been

prejudiced

Cordova,

the

the

Ikes’

failure

Tennessee

(the

Property

“Property”)

that

is

subject

absorbed

since

Quantum’s

the

motions

foreclosure

costs.
to

to

a

Quantum argues that the Ikes have lived
but

have

not

paid

reasonable rental or made monthly mortgage payments.
has

to

The underlying dispute in this action is a property

$765,000 Deed of Trust.
on

by

Prolonging

dismiss

has

the

“subjected

any

Quantum

dispositions

of

defendants

to

unnecessary delay in either dismissing the case or proceeding to
discovery.”

Id. at *6.

Quantum has “waste[d] time, money, and

effort in pursuit of cooperation which [plaintiffs were] legally
obligated to provide.”

Harmon, 110 F.3d at 368.

The Ikes have twice been notified that a failure to respond
(or to respond adequately) could lead to dismissal.

Whether a

plaintiff received notice is a “key consideration” in balancing
the factors under Rule 41(b).

See Shafer, 529 F.3d at 740

(citation

late

omitted).

The

Ikes’

response

to

the

Court’s

first show cause order suggested that new counsel would cure the
4

delays

caused

by

original

counsel’s

neglect.

The

Ikes

have

failed to respond to Quantum’s renewed motion and have offered
no reasons.
court.”

The Ikes were “indisputably on notice from the

Id.

This case has languished in the pre-discovery stages.
Ikes

have

twice

dispositive

failed

motions.

to

respond

“[T]he

on

issuance

the
of

merits
two

to

orders

The

pending
to

show

cause, giving plaintiffs multiple opportunities to explain their
failure to respond, demonstrates that the court considered less
drastic

sanctions

before

Dist. LEXIS 100607, at *7.

dismissal.”

Overstreet,

2008

U.S.

The fourth factor weighs in favor of

dismissal; any “lesser sanction would simply serve to reward
plaintiffs for the abandonment of this prosecution.”
IV.

Id.

Conclusion

The Court finds that all four factors weigh in favor of
dismissal.

Quantum’s May 24, 2012 Motion to Dismiss for failure

to prosecute is GRANTED, and the Ikes’ action against Quantum is
DISMISSED WITH PREJUDICE.
So ordered this 20th day of August, 2012

s/ Samuel H. Mays, Jr._______
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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