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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ROSETTA R. FERGUSON, 

 

 Plaintiff, Case No. 14-13250 

v. District Judge Marianne O. Battani 

 Magistrate Judge Anthony P. Patti 

COMMISSIONER OF SOCIAL 

SECURITY, 

 

 Defendant. 

___________________________________/ 

REPORT AND RECOMMENDATION 

I. RECOMMENDATION: The Court should dismiss Plaintiff’s action 

pursuant to Federal Rule of Civil Procedure 41(b) and Eastern District of Michigan 

Local Rule 41.2 for failure to prosecute. 

II. REPORT 

This matter is before the United States Magistrate Judge for a Report and 

Recommendation on the Court’s January 27, 2015 Order to Show Cause. (DE 16.) 

 A. Background 

 On August 20, 2014, Plaintiff Rosetta Ferguson filed her Complaint and 

Application to Proceed without Prepaying Fees or Costs. (DE 1, 2.) The Court 

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granted Plaintiff’s Application on August 21, 2014. On November 7, 2014, the 

Commissioner of Social Security filed a Motion to Dismiss. (DE 12.) Thereafter, 

the Court issued a Scheduling Order. (DE 13.) Pursuant to the Order, Plaintiff’s 

Response was due on January 9, 2015. 

 Because Plaintiff failed to timely file her Response, on January 9, 2015, the 

Magistrate Judge issued a Show Cause Order. The Magistrate Judge gave Plaintiff 

until February 17, 2015 to show cause, in writing, why the case should not be 

dismissed for failure to prosecute. (DE 16.) To date, Plaintiff has not responded to 

the Show Cause Order. 

 B. Standard 

 Federal Rule of Civil Procedure 41(b) and Local Rule 41.2 authorize 

involuntary dismissal for failure to prosecute or to comply with rules of procedure 

or court orders. See also Chambers v. Nasco, Inc., 501 U.S. 32, 49 (1991) (noting 

that “a federal district court has the inherent power to dismiss a case sua sponte for 

failure to prosecute” as recognized in Link v. Walbash R. Co., 370 U.S. 626, 629-

32 (1962)). “This measure is available to the district court as a tool to effect 

management of its docket and avoidance of unnecessary burdens on the taxsupported courts and opposing parties.” Knoll v. AT&T, 176 F.3d 359, 63 (6th Cir. 

1999). 

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 The United States Court of Appeals for the Sixth Circuit directs district 

courts to consider the following factors in deciding whether to dismiss under Rule 

41(b): 

(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. 

Schafer v. City of Defiance Police Dept., 529 F.3d 731, 737 (6th Cir. 2008) 

(internal citations omitted). Although 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.’” Schafer, 529 F.3d at 737 (quoting Knoll, 176 

F.3d at 363). 

 C. Discussion 

 In the instant case, the record demonstrates such delay and contumacious 

conduct. After Plaintiff failed to file her Response, the Court issued an Order to 

Show Cause, warning her that her failure to show cause could result in dismissal 

pursuant to Rule 41(b). The Order provided Plaintiff with adequate notice of the 

Court’s intention to dismiss for failure to prosecute and supplied her with a 

reasonable period of time to comply. Plaintiff did not file her Response or 

otherwise respond to the Order in the time provided. Because Plaintiff has missed 

multiple deadlines and disregarded court orders, the Undersigned concludes that no 

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alternative sanction would protect the integrity of the pretrial process. The 

Undersigned therefore RECOMMENDS that the Court DISMISS Plaintiff’s 

action under Rule 41(b) and E.D. Mich. LR 41.2. 

III. PROCEDURE ON OBJECTIONS 

 The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to file any objections within 14 days of service, 

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 

72.1(d). Failure to file specific objections constitutes a waiver of any further right 

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some 

issues but fail to raise others with specificity will not preserve all the objections a 

party might have to this Report and Recommendation. Willis v. Sec’y of Health & 

Human Servs., 932 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 

72.1(d)(2), any objections must be served on this Magistrate Judge. 

 Any objections must be labeled as “Objection No. 1,” and “Objection No. 

2,” etc. Any objection must recite precisely the provision of this Report and 

Recommendation to which it pertains. Not later than 14 days after service of an 

objection, the opposing party may file a concise response proportionate to the 

objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich LR 

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72.1(d). The response must specifically address each issue raised in the objections, 

in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without 

merit, it may rule without awaiting the response. 

Dated: February 23, 2015 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record 

on February 23, 2015, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

Honorable Anthony P. Patti 

(313) 234-5200 

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