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Report and Recommendation

Sue Sponte Dismissal 1 Edwards v. U.S. Bank; 09-10546

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SAMUEL EDWARDS, Case No. 09-10546

Plaintiff, Stephen J. Murphy, III

 United States District Judge

vs.

Michael Hluchaniuk

U.S. BANK, et al., United States Magistrate Judge

Defendants.

 /

REPORT AND RECOMMENDATION

DISMISSAL FOR FAILURE TO PROSECUTE AND

DEFENDANT’S MOTION TO DISMISS (Dkt. 7)

I. PROCEDURAL HISTORY

This is a civil action filed on February 13, 2009. (Dkt. 1). Plaintiff alleges

that defendants willfully violated the automatic stay provision of his bankruptcy

proceedings. On June 18, 2009, District Judge Stephen J. Murphy, III, referred

this matter to the undersigned for all pretrial proceedings pursuant to 28 U.S.C.

§ 636. (Dkt. 8). Defendants filed a motion to dismiss on June 17, 2009. (Dkt. 7). 1

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On June 24, 2009, the Court ordered plaintiff to respond to defendant’s motion to

dismiss by July 20, 2009. (Dkt. 9). This order was served on plaintiff at the

address listed on file with the Court and set forth on plaintiff’s complaint. On

June 30, 2009, the order served on plaintiff was returned as “undeliverable” by the

U.S. Post Office. (Dkt. 10). On July 7, 2009, the Court ordered plaintiff to show

cause, by July 21, 2009, why this matter should not be dismissed for failure to

prosecute and for failure to keep the Court apprised of his current address. (Dkt.

12). Plaintiff has not responded to the show cause order, although the order was

not, as of the date of this report and recommendation, returned to the Court as

undeliverable.

For the reasons set forth below, the undersigned RECOMMENDS that

plaintiff’s complaint be DISMISSED with prejudice for failure to prosecute. The

undersigned further recommends that defendant’s motion to dismiss be DENIED

as moot.

II. ANALYSIS AND CONCLUSION

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

rules or a court order, a defendant may move to dismiss

the action or any claim against it. Unless the dismissal

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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

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

F.3d at 992.

In this case, plaintiff ignored the orders of this Court and violated both the

Federal Rules of Civil Procedure and the Local Rules for the Eastern District of

Michigan. 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). 

In this case, the Court plainly warned plaintiff that his case would be

dismissed with prejudice if he again failed to respond to an order of the Court. 

(Dkt. 12). Thus, this factor weighs in favor of dismissal. With respect to the first

factor, just as 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, “defendant[] cannot be expected to defend an action,”

that plaintiff has “apparently abandoned, not to mention the investment of time

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and resources expended to defend this case.” Id. Thus, the first and third factors

weigh in favor of dismissal. Finally, given plaintiff’s complete failure to

participate in this case since the filing of the complaint in February, 2009, the

undersigned sees no utility in considering or imposing lesser sanctions. Thus,

none of the factors weigh against dismissal for failure to prosecute.

It is true that “district courts should be especially hesitant to dismiss for

procedural deficiencies where, as here, the failure is by a pro se litigant.” White, at

*8, quoting, Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). However, “dismissal

is appropriate when a pro se litigant has engaged in a clear pattern of delay.”

Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). Indeed, a sua sponte

dismissal may be justified by a plaintiff’s “apparent abandonment of [a] case.” 

White, at *5, citing, Washington v. Walker, 734 F.2d 1237, 1240 (7th Cir. 1984).

An additional basis for dismissal is plaintiff’s failure to keep the Court informed

of his current address. 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.). Under

the circumstances, the undersigned suggests that dismissal with prejudice is

appropriate.

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III. RECOMMENDATION 

Based on the foregoing, the undersigned RECOMMENDS that plaintiff’s

complaint be DISMISSED with prejudice. The undersigned further recommends

that defendant’s motion to dismiss be DENIED 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 10 days of service,

as provided for in 28 U.S.C. § 636(b)(1) and Local Rule 72.1(d)(2). 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). 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,” “Objection No. 2,”

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

Recommendation to which it pertains. Not later than 10 days after service of an

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

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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 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.

s/Michael Hluchaniuk 

Date: July 30, 2009 Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on July 30, 2009, I electronically filed the foregoing paper with

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

notification to the following: Timothy B. Myers, and I certify that I have mailed by

United States Postal Service the paper to the following non-ECF participant(s):

Samuel Edwards, 2334 W. McNichols, Detroit, MI 48221.

s/James P. Peltier 

Courtroom Deputy Clerk

U.S. District Court

600 Church Street

Flint, MI 48502

(810) 341-7850

pete_peltier@mied.uscourts.gov

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