UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

250 EAST FLAMINGO, LLC. 

et al., 

 Petitioners, 

 Case No. 2:15-mc-50702 

v. District Judge Paul D. Borman 

 Magistrate Judge Anthony P. Patti 

FRANK TADDEO, et al., 

 Respondents. 

___________________________________/ 

REPORT AND RECOMMENDATION TO DISMISS WITHOUT 

PREJUDICE FOR FAILURE TO PROSECUTE 

I. RECOMMENDATION: The Court should dismiss Petitioner’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 

On May 18, 2015, this action was referred to me for all pretrial proceedings 

pursuant to 28 U.S.C. § 636. This matter is before me for a Report and 

Recommendation on the June 15, 2015 Order to Show Cause. (DE 6.) 

2:15-mc-50702-PDB-APP Doc # 7 Filed 08/12/15 Pg 1 of 5 Pg ID 284
2

 A. Background 

 On May 14, 2015, Petitioners initiated this miscellaneous action by filing a 

motion to quash. (DE 1.)1

 The motion did not contain a certificate of service and 

there was no indication that Respondents had been served. Accordingly, on June 

1, 2015, I issued an Order requiring Petitioners to provide the status of service over 

Respondents on or before June 5, 2015. (DE 5.) Petitioners filed no response. On 

June 15, 2015, I ordered Petitioners to show cause on or before June 30, 2015, why 

the action should not be dismissed for failure to prosecute. (DE 6.) The Order 

cautioned Petitioners that failure to comply “could result in a Report and 

Recommendation recommending that the Court dismiss this action pursuant to 

Federal Rule of Civil Procedure 41(b).” To date, Petitioners have not responded to 

the Show Cause Order. Nor is there any indication that Respondents have been 

served with notice of the action, or that Petitioners have taken any further action 

with respect to their motion. 

 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 

                                                            

1

 The Local Rules for the Eastern District of Michigan do not distinguish between miscellaneous 

and civil actions. See E.D. Mich. LR 41.2 and Comment to E.D. Mich. LR 83.11. In addition, 

any miscellaneous action “may be changed into a civil case if contested before a district judge.” 

Comment to E.D. Mich. LR 83.11. 

2:15-mc-50702-PDB-APP Doc # 7 Filed 08/12/15 Pg 2 of 5 Pg ID 285
3

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). 

 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 Petitioners failed to respond to the Court’s June 1, 2015 Order, I 

2:15-mc-50702-PDB-APP Doc # 7 Filed 08/12/15 Pg 3 of 5 Pg ID 286
4

issued an Order to Show Cause, warning Petitioners that failure to show cause 

could result in dismissal pursuant to Rule 41(b). The Order provided Petitioners 

with adequate notice of the Court’s intention to dismiss for failure to prosecute and 

supplied them with a reasonable period of time to comply. Petitioners did not file 

a response or otherwise respond to the Order in the time provided (or in the weeks 

since then). Because Petitioners have missed multiple deadlines and disregarded 

court orders, I conclude that no alternative sanction would help the Court to 

effectively manage its docket and to avoid unnecessary burdens on the Court and 

opposing parties. I therefore RECOMMEND that the Court DISMISS 

Petitioners’ 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 

2:15-mc-50702-PDB-APP Doc # 7 Filed 08/12/15 Pg 4 of 5 Pg ID 287
5

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 

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: August 12, 2015 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

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

on August 12, 2015, electronically and/or by U.S. Mail. 

 

s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

2:15-mc-50702-PDB-APP Doc # 7 Filed 08/12/15 Pg 5 of 5 Pg ID 288