UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHELLE MCCLURE,

Plaintiff,

Civil Action 2:12-cv-00309

v. Judge Edmund A. Sargus

Magistrate Judge Elizabeth P. Deavers

PARKING SOLUTIONS, INC.,

Defendant.

REPORT AND RECOMMENDATION

This matter is before the Court for consideration of Plaintiff’s failure to respond to the

Court’s July 12, 2012 Show Cause Order. For the reasons that follow, it is RECOMMENDED

that the Court DISMISS this action without prejudice pursuant to Federal Rule of Civil

Procedure 41(b).

Plaintiff, who is proceeding pro se, brought this action on April 9, 2012. Following

service of Plaintiff’s Complaint and Defendant’s Answer, the Court scheduled a Preliminary

Pretrial Conference for July 12, 2012 at 11:00 a.m. Counsel for Defendant appeared at this

conference and was prepared to participate. Despite communicating to Court personnel on July

11, 2012 that she was aware of the conference, Plaintiff failed to appear. Accordingly, on July

12, 2012, the Court issued a Show Cause Order requiring Plaintiff to show cause within fourteen

days as to why this case should not be dismissed for failure to prosecute. The Court cautioned

Plaintiff that failure to respond could result in dismissal of her action. As of the date of this

Report and Recommendation, Plaintiff has failed to offer any response to the Court’s July 12,

2012 Show Cause Order. 

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The Court’s inherent authority to dismiss a plaintiff’s action because of his or her failure

to prosecute or comply with rules or court orders is expressly recognized in Rule 41(b), which

provides in pertinent part: “If the plaintiff fails to prosecute or comply with these rules or a court

order, a defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P.

41(b); Link v. Walbash R. Co., 370 U.S. 626, 629-31 (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 tax-supported courts and opposing parties.” Knoll v. AT & T, 176 F.3d 359, 63 (6th Cir.

1999). Furthermore, “it is well-settled that the district court can enter a sua sponte order of

dismissal under Rule 41(b).” Rogers v. City of Warren, 302 F. App’x. 371, 375 n.1 (6th Cir.

2008).

The United States Court of Appeal for the Sixth Circuit directs the district courts to

consider the following four factors in deciding whether to dismiss an action for failure to

prosecute 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) (quoting Knoll, 176

F.3d at 363). “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.” Schafer, 529 F.3d at 737 (quoting Knoll, 176 F.3d at 363).

In this case, dismissal for failure to prosecute is appropriate. The circumstances suggest

that Plaintiff willfully chose to miss the July 12, 2012 Preliminary Pretrial Conference and has

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since failed to respond to the Court’s Show Cause Order. Plaintiff’s failure to attend the

conference not only displays a lack of proper diligence, but also a disregard for the time of both

Defense counsel and this Court. The Court cautioned Plaintiff that failure to respond to the

Court’s Show Cause Order could result in dismissal. Despite this warning, however, Plaintiff

has failed to offer any excuse for her conduct. 

Accordingly, it is RECOMMENDED that the Court DISMISS Plaintiff’s action without

prejudice pursuant to Federal Rule of Civil Procedure 41(b)

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge's report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

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(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

IT IS SO ORDERED. 

Date: August 2, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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