Thomas et al v. U.S. Bank Natonal Association et al

Filing 20

ORDER PARTILLY ADOPTING REPORT AND RECOMMENDATION AND IMPOSING LESSER SANCTION. Signed by Judge S. Thomas Anderson on 9/28/2015. (Anderson, S.)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CORDELL THOMAS and
DAMOND ROKER,
Plaintiffs,
VS.
U.S. BANK NATIONAL
ASSOCIATION, et al.,
Defendants.

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No. 15-2286-JDT-dkv

ORDER PARTIALLY ADOPTING REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE AND IMPOSING A LESSER SANCTION

On August 27, 2015, Magistrate Judge Diane K. Vescovo issued a Report and
Recommendation (ECF No. 17) in which she recommends the dismissal of the complaint for
failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Plaintiffs
filed an “Emergency Motion to Vacate Report and Recommendation of US Magistrate Judge and
Reinstate Plaintiffs’ Right to Prosecute Lawsuit” on September 3, 2015 (ECF No. 18). Plaintiffs’
“motion” is actually an objection to the Report and Recommendation. To the extent that
Plaintiffs’ document can be considered a “motion,” it is DENIED. For the reasons set forth
below, the Report and Recommendation in this matter is PARTIALLY ADOPTED. The Court
finds that the dismissal of the action is not appropriate at this juncture and that a lesser sanction
should be imposed.

On August 3, 2015, Plaintiffs were ordered to appear before Magistrate Judge Vescovo
for a status conference on August 12, 2015 (ECF No. 12). Plaintiffs failed to appear.
Consequently, an Order to Show Cause was entered requiring Plaintiffs to appear in court on
August 26, 2015, to show cause why this matter should not be dismissed for failure to prosecute
(ECF No. 14). Although Plaintiffs were warned that failing to appear could result in the
dismissal of the action, nonetheless, they did not appear. Defense counsel, who did appear, made
an oral motion for dismissal. The Report and Recommendation for dismissal followed.
In their motion/objection, Plaintiffs state that Plaintiff Thomas was unable to appear for
the Status Conference on August 12, 2015, because of a medical emergency. Plaintiff Thomas
purportedly did not appear for the Show Cause Hearing because a “glitch within his email
system” caused him to receive the notice of hearing late.1 Plaintiff Roker did not appear at either
hearing because of a “religious sabbatical he was undergoing as a clergyman.”2 Plaintiffs have
not submitted affidavits or any other supporting documentation with their motion/objection nor
have they explained why they did not notify the court of their intended absences prior to the
hearings or ask that the hearings be rescheduled.
If a party objects within the allotted time to a report and recommendation, the Court
“shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.”3 Upon review, the Court “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.”4

1
2

Pls’ M/Obj. ECF No. 18
Id.

3

28 U.S.C. § 636(b) (1); see also Fed R. Civ. P. 72(b)

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Id.

2

Rule 41(b) of the Federal Rules of Civil Procedure confers on district courts the authority
to dismiss a case “[i]f the plaintiff fails to prosecute or comply with these rules or a court
order....”5 “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.”6 “The dismissal of a claim for failure to prosecute is a harsh sanction which the court
should order only in extreme situations showing a clear record of contumacious conduct by the
plaintiff.”7
The Sixth Circuit has identified four factors that are considered in reviewing a court's
dismissal for failure to prosecute: (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 was ordered.8 “Although
typically none of the factors is outcome dispositive ... a case is properly dismissed by the district
court where there is a clear record of delay or contumacious conduct.”9
In the present case, the Court is concerned that Plaintiffs did not appear at either the
scheduling conference or the show cause hearing. However, they have made some attempt to
prosecute their case by filing an objection to the Report and Recommendation and by stating
their intention to proceed with this matter. The case has only been pending a few months, and the
only prejudice to Defendants is the expense of having their counsel appear at the two hearings.
5

Knoll v. AT & T, 176 F.3d 359, 362–63 (6th Cir. 1999)

6

Id. at 363 (brackets and internal quotation marks omitted)

7

Schafer v. City of Defiance Police Dep't, 529 F.3d 731, 736–38 (6th Cir.2008) (internal
citations omitted)
8

See Schafer, 529 F.3d at 737

9

Knoll, 176 F.3d at 363

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Consequently, the Court finds that the lesser sanction of ordering Plaintiffs to pay the reasonable
expenses of defense counsel associated with appearing at the two hearings is sufficient at this
time to ensure Plaintiffs’ compliance with the orders of the Court.
Accordingly, the Report and Recommendation of Magistrate Judge Vescovo is
PARTIALLY ADOPTED to the extent that a sanction for Plaintiffs’ failure to appear at the two
hearings is warranted. The lesser sanction of awarding reasonable attorney’s fees and expenses to
Defendants for defense counsel’s appearance at the hearings is hereby imposed. Defense counsel
should submit to the Court an affidavit within ten (10) days of the entry of this order as to those
fees and expenses. Plaintiffs will then have ten (10) days to submit payment to defense counsel.
Plaintiffs are warned that any failure to abide by the orders of the Court in the future,
including payment to defense counsel, will result in the dismissal of the action.

IT IS SO ORDERED.

s/ S. Thomas Anderson
S.THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

Date: September 28, 2015.

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