UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MALINDA L. GARDNER, 

 Plaintiff, CIVIL ACTION NO. 14-cv-14134 

 v. DISTRICT JUDGE NANCY G. EDMUNDS 

STATE OF MICHIGAN, et al., MAGISTRATE JUDGE MONA K. MAJZOUB 

 Defendants. 

_____________________________/ 

REPORT AND RECOMMENDATION 

This matter comes before the Court on an oral Motion to Dismiss made by Defendants at 

a Show Cause Hearing held by the undersigned on September 24, 2015 at 10:00 a.m., at which 

Plaintiff failed to appear. This matter has been referred to the undersigned for all pretrial 

purposes. (Docket no. 19.) The Court took Defendants’ Motion under advisement at the hearing 

and now issues this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

I. RECOMMENDATION 

This Court recommends that Defendants’ Motion to Dismiss be GRANTED and that 

Plaintiff’s Complaint be dismissed in its entirety with prejudice. 

II. REPORT

 On October 27, 2014, Plaintiff filed the instant pro se Complaint of Employment 

Discrimination pursuant to Title VII of the Civil Rights Act of 1964 with the Court, alleging that 

Defendants discriminated against her on the basis of race, color, age, disability, and religion. 

(Docket no. 1.) Plaintiff’s claims survived Defendants’ initial Motion to Dismiss for lack of 

subject matter jurisdiction on August 21, 2015. (Docket no. 27.) 

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 That same day, the Court issued to the parties a notice to appear before the Court for a 

scheduling conference on September 9, 2015 at 10:00 a.m. (Docket no. 28.) The Court mailed 

the Notice to Appear to Plaintiff at her address of record. Plaintiff failed to appear for the 

conference. The Court’s case manager then telephoned Plaintiff on September 9, 2015 and left 

her a voice message regarding her failure to appear. On September 14, 2015, the Court’s case 

manager spoke with Plaintiff via telephone. During the conversation, Plaintiff informed that she 

had not received the Notice to Appear. The Court’s case manager then confirmed with Plaintiff 

that her address of record was correct. Also, the Court’s case manager told Plaintiff that she may 

be ordered to appear for a show cause hearing; Plaintiff responded that she would be “just fine” 

with that. 

 On September 14, 2015, the Court ordered Plaintiff to appear before the Court on 

September 24, 2015 at 10:00 a.m. to show cause as to why she should not be held in contempt of 

court for failing to appear at the scheduling conference. (Docket no. 33.) The Order warned 

Plaintiff that “Failure to Appear on September 24, 2015 may result in Plaintiff being held in 

contempt of this Court and/or being sanctioned.” (Id.) Plaintiff did not appear for the show 

cause hearing, and neither the Court nor Defendants have had any contact from Plaintiff since the 

aforementioned telephone conversation on September 14, 2015. 

 At the show cause hearing, Defendants made an oral motion to dismiss this matter, which 

the Court took under advisement. Rule 41(b) of the Federal Rules of Civil Procedure gives a 

court authority to dismiss a case on motion if “the plaintiff fails to prosecute or to comply with 

these rules or a court order....” Fed. R. Civ. P. 41(b). A dismissal under Rule 41(b) operates as 

an adjudication on the merits. (Id.) The court should consider the following factors before 

dismissing an action under Rule 41(b): “(1) whether the party's failure to cooperate is due to 

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willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dilatory conduct 

of the party; (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.” Stough v. Mayville Cmty. Schs., 138 F.3d 612, 615 (6th Cir. 1998). 

 After considering the factors identified in Stough, this action should be dismissed because 

of Plaintiff's failure to prosecute her case and to comply with the rules and orders of this Court. 

Plaintiff did not appear for the scheduling conference or the subsequent show cause hearing, and 

she has not responded to Defendants’ pending Motion for a More Definite Statement. There is 

no indication that any of the notices, orders, or motions sent to Plaintiff’s address of record have 

been returned as undeliverable; indeed, the Court recently confirmed with Plaintiff that her 

address of record is correct. The Court provided opportunities for Plaintiff to participate in this 

litigation that Plaintiff herself initiated, and Plaintiff’s failure to do so appears to be willful and 

in bad faith. Defendants have continued to defend against this action and have been prejudiced 

by Plaintiff’s failure to appear before this Court. Furthermore, this Court warned Plaintiff that 

her failure to comply with the Court’s Order to Show Cause could result in Plaintiff being held in 

contempt or other sanctions. Yet, despite the Court’s warning, Plaintiff failed to appear at the 

show cause hearing and has had no further contact with the Court. Given Plaintiff’s failure to 

comply with this Court’s Order to appear before this Court and participate in the prosecution of 

this action on two separate occasions, there is no less drastic sanction than dismissal for the 

Court to order. 

 Accordingly, it is recommended that Defendants’ oral Motion to Dismiss be granted and 

that Plaintiff’s Complaint be dismissed with prejudice for failure to prosecute and for failure to 

comply with the Court’s orders under Rule 41(b). 

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III. NOTICE TO PARTIES REGARDING OBJECTIONS 

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

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as 

provided for in 28 U.S.C. § 636(b)(1) and Eastern District of Michigan 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, 149 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505 (6th 

Cir. 1991); U.S. v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). Filing of objections which 

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., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n Of Teachers Local 231, 829 

F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections 

is to be served upon this Magistrate Judge. 

 Any objections must be labeled as “Objection #1,” “Objection #2,” etc. Any objection 

must recite precisely the provision of this Report and Recommendation to which it pertains. Not 

later than fourteen days after service of an objection, the opposing party must file a concise 

response proportionate to the objections in length and complexity. The response must 

specifically address each issue raised in the objections, in the same order and labeled as 

“Response to Objection #1,” “Response to Objection #2,” etc. 

Dated: October 8, 2015 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

 UNITED STATES MAGISTRATE JUDGE 

 

 

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PROOF OF SERVICE

 I hereby certify that a copy of this Report and Recommendation was served upon 

Malinda L. Gardner and counsel of record on this date. 

Dated: October 1, 2015 s/ Lisa C. Bartlett 

 Case Manager

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