UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DERRICK HUTCHINSON,

Plaintiff,

v.

STERLING MANAGEMENT LTD., et al,

Defendants.

_____________________________________/

Case No. 15-11158

Linda V. Parker

United States District Judge

Stephanie Dawkins Davis

United States Magistrate Judge

REPORT AND RECOMMENDATION

RULE 41(B) DISMISSAL AND

MOTION FOR SUMMARY JUDGMENT (Dkt. 21)

I. PROCEDURAL HISTORY

Plaintiff, who is represented by counsel, filed this lawsuit in Oakland

County Circuit Court and it was removed to this Court on March 27, 2015. (Dkt.

1). On December 29, 2015, defendants filed a motion for summary judgment. 

(Dkt. 21). On February 8, 2016, District Judge Linda V. Parker referred this

matter to the undersigned for report and recommendation. (Dkt. 22). On March 2,

2016, the Court issued a scheduling order on this motion. (Dkt. 23). The order

noted in bold print that failure to file a response may result in sanctions, including

granting all or part of the relief requested by the moving party. Id. 

Counsel for plaintiff failed to file a timely response to the motion for

1

4:15-cv-11158-LVP-SDD Doc # 26 Filed 06/29/16 Pg 1 of 8 Pg ID 262
summary judgment. After repeated phone calls to plaintiff’s counsel, which went 1

unreturned, the Court issued an order (Dkt. 24), requiring plaintiff to show cause

in writing, by May 11, 2016, why this matter should not be dismissed for failure to

prosecute. See e.g., Watsy v Richards, 1987 WL 37151 (6th Cir. 1987) (A Rule

41(b) dismissal is an appropriate sanction for a pro se litigant’s failure to provide

the court with information regarding his current address.). Plaintiff’s counsel was

again warned, in bold print, that failure to timely or adequately respond in writing

to the Order to show cause or timely file a response to the motion would result in a

recommendation that the motion be granted or that the entire matter be dismissed

under Rule 41(b). (Dkt. 24). As of the date of this report and recommendation,

plaintiff has failed to respond to the show cause order, file a response to the

pending motion, or otherwise contact the Court.

For the reasons set forth below, the undersigned RECOMMENDS that

plaintiff’s complaint against defendants be DISMISSED without prejudice under

Federal Rule of Civil Procedure 41(b) and that the pending motion (Dkt. 21) be

TERMINATED as MOOT. 

 Plaintiff’s first listed counsel, Elbert L. Hatchett has been suspended from practice in 1

the Eastern District of Michigan, but plaintiff’s other listed counsel, Marcellus Long, Jr., remains

in good standing. All orders in this case were sent via the Case Management/Electronic Case

Files (CM/ECF) system utilized by the Court and in which both of plaintiff’s counsel participate.

2

4:15-cv-11158-LVP-SDD Doc # 26 Filed 06/29/16 Pg 2 of 8 Pg ID 263
II. ANALYSIS AND CONCLUSION

Under Federal Rules of Civil Procedure 41(b), a federal court may sua

sponte dismiss a claim for failure to prosecute or comply with an order. Link v.

Wabash R.R. Co., 370 U.S. 626, 630-32 (1962); Steward v. City of Jackson, 8 Fed.

Appx. 294, 296 (6th Cir. 2001). Indeed, the “authority of a federal trial court to

dismiss a plaintiff’s action with prejudice because of his failure to prosecute

cannot seriously be doubted.” Link, 370 U.S. at 629. “The power to invoke this

sanction is necessary in order to prevent undue delays in the disposition of

pending cases and to avoid congestion in the calendars of the District Courts.” 

Link, 370 U.S. at 629-630. “[D]istrict courts possess broad discretion to sanction

parties for failing to comply with procedural requirements.” Tetro v. Elliott

Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988, 991

(6th Cir. 1999), citing Carver v. Bunch, 946 F.2d 451, 453 (6th Cir. 1991).

Further, “a district court can dismiss an action for noncompliance with a local rule

... if the behavior of the noncomplying party rises to the level of a failure to

prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.” Tetro, 173

F.3d at 992. 

Federal Rule of Civil Procedure 41 governs dismissals. As to involuntary

dismissals, it provides:

If the plaintiff fails to prosecute or to comply with these

3

4:15-cv-11158-LVP-SDD Doc # 26 Filed 06/29/16 Pg 3 of 8 Pg ID 264
rules or a court order, a defendant may move to dismiss

the action or any claim against it. Unless the dismissal

order states otherwise, a dismissal under this subdivision

(b) and any dismissal not under this rule - except one for

lack of jurisdiction, improper venue, or failure to join a

party under Rule 19 - operates as an adjudication on the

merits.

Fed.R.Civ.P. 41(b). “Neither the permissive language of [Rule 41(b)] – which

merely authorizes a motion by the defendant – nor its policy requires us to

conclude that it was the purpose of the Rule to abrogate the power of courts,

acting on their own initiative, to clear their calendars of cases that have remained

dormant because of the inaction or dilatoriness of the parties seeking relief.” Link

v. Wabash R. Co., 370 U.S. 626, 630 (1962). “The authority of a federal trial court

to dismiss a plaintiff’s action with prejudice because of his failure to prosecute

cannot seriously be doubted.” Link, 370 U.S. at 629; see also Carter v. City of

Memphis, Tenn., 636 F.2d 159, 161 (6th Cir. 1980) (“It is clear that the district

court does have the power under [Fed.R.Civ.P. 41(b)] to enter a sua sponte order

of dismissal.”) (citing Link). Moreover, “district courts possess broad discretion to

sanction parties for failing to comply with procedural requirements.” Tetro v.

Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988,

991 (6th Cir. 1999), citing Carver v. Bunch, 946 F.2d 451, 453 (6th Cir. 1991). 

And, “a district court can dismiss an action for noncompliance with a local rule

only if the behavior of the noncomplying party rises to the level of a failure to

4

4:15-cv-11158-LVP-SDD Doc # 26 Filed 06/29/16 Pg 4 of 8 Pg ID 265
prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.” Tetro, 173

F.3d at 992.

The Sixth Circuit considers four factors in reviewing the decision of a

district court to dismiss a case 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.

Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005), citing Knoll v.

American Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999). 

With respect to the first factor, similar to the facts in White v. Bouchard,

2008 WL 2216281, *5 (E.D. Mich. 2008), “it is not clear whether plaintiff’s

failure to prosecute is due to willfulness, bad faith or fault.” Id. Regardless,

“defendants cannot be expected to defend an action,” that plaintiff has “apparently

abandoned, not to mention the investment of time and resources expended to

defend this case.” Id. Consequently, the undersigned concludes that plaintiff’s

repeated failures to respond to the motion for summary judgment also amounts to

abandonment for the purpose of this analysis. Brown v. VHS of Mich., Inc., 545

Fed. Appx. 368, 372 (6th Cir. 2013) (A plaintiff is deemed to have abandoned a

claim when he fails to address it in response to a motion for summary judgment.). 

5

4:15-cv-11158-LVP-SDD Doc # 26 Filed 06/29/16 Pg 5 of 8 Pg ID 266
Thus, the first and second factors weigh in favor of dismissal. 

Moreover, based on the number of warnings given to plaintiff, the third

factor also clearly weighs in favor of dismissal. (Dkt. 23, 24). This court has

regularly dismissed cases under Rule 41(b) after a plaintiff has been warned of

dismissal more than once, failed to comply with court orders without explanation,

where defendants expended resources on an abandoned action and lesser sanctions

would prove useless. See e.g., Croton v. Recker, 2012 WL 3888220, at *2 (E.D.

Mich. Sept. 7, 2012). In this case, as in Croton, the Court warned plaintiff

multiple times in writing that dismissal in defendants’ favor would be granted if he

failed to file a response to the motion and to the order to show cause. (Dkt. 23,

24). See also Labreck v. U.S. Dep’t of Treasury, 2013 WL 511031, at *2 (E.D.

Mich. 2013) (recommending dismissal for plaintiff’s failure to comply with orders

of the court), adopted by 2013 WL 509964 (E.D. Mich. 2013). And finally, given

plaintiff’s failure to file a response as ordered and failure to respond to the order to

show cause, the undersigned sees no utility in considering or imposing lesser

sanctions. Thus, taken together, these factors support dismissal for failure to

prosecute. However, given that plaintiff is represented by counsel and the failings

in this case are directly attributable to counsel, the dismissal should be without

prejudice. Given the foregoing conclusions, the undersigned also recommends

that the pending motion for summary judgment be terminated as moot.

6

4:15-cv-11158-LVP-SDD Doc # 26 Filed 06/29/16 Pg 6 of 8 Pg ID 267
III. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

plaintiff’s complaint against defendants be DISMISSED without prejudice under

Federal Rule of Civil Procedure 41(b) and that the pending motion for summary

judgment (Dkt. 21) be TERMINATED as MOOT.

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 and

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

and 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). 

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

7

4:15-cv-11158-LVP-SDD Doc # 26 Filed 06/29/16 Pg 7 of 8 Pg ID 268
Rule 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.

Date: June 29, 2016 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on June 29, 2016, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to all counsel of record.

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

8

4:15-cv-11158-LVP-SDD Doc # 26 Filed 06/29/16 Pg 8 of 8 Pg ID 269