UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Duane Richard Slicker,

Plaintiff,

v.

Southwest Airlines, a Texas Company,

Defendant.

 /

Case No. 09-11217

Honorable Nancy G. Edmunds

OPINION AND ORDER DISMISSING PLAINTIFF’S COMPLAINT FOR FAILURE TO

COMPLY WITH COURT ORDERS AND PROSECUTE HIS CLAIM

This matter came before the Court on Defendant Southwest Airlines’s motion to

dismiss because of Plaintiff Duane Richard Slicker’s failure prosecute this matter. (Dkt.

38.) Due to Plaintiff’s failure to respond to the motion, even after the Court ordered a

response, and his failure to respond to other Court orders, the Court grants Defendant’s

motion and dismisses Plaintiff’s complaint with prejudice for failure to comply with the

Court’s orders or otherwise prosecute his claims. Because a one-sided hearing would be

fruitless, the Court dispenses with a hearing and decides the motion on the brief and

documents filed pursuant to Eastern District of Michigan Local Rule 7.1(e)(2).

I. Facts

On April 1, 2009, Plaintiff filed a stream of consciousness pro se complaint against

Defendant for injuries he allegedly suffered during a flight from Chicago to Detroit. (Dkt.

1.) On April 24, 2009, Defendant filed a motion for Plaintiff to provide a properly structured

and pleaded complaint so that it could file an answer. (Dkt. 4.) On May 11, 2009, the
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Court ordered Plaintiff to show cause why the Court should not dismiss his complaint for

lack of subject matter jurisdiction, for failing to allege Defendant’s place of incorporation and

principal place of business. (Dkt. 7.) Almost five months later, on October 5, 2009,

attorney Matthew C. Shepard filed an appearance on Plaintiff’s behalf and filed an

amended complaint. (Dkt. 10, 11.) The Court was eventually satisfied with its jurisdiction

over the parties. (Dkt. 18.) Minimal progress occurred in the case over the next several

months.

On June 10, 2010, Mr. Shepard filed a motion to withdraw as Plaintiff’s counsel, citing

a breakdown in his attorney-client relationship with Plaintiff. (Dkt. 34.) On June 15, 2010,

the Court granted Mr. Shepard’s motion. (Dkt. 36.) In that order, the Court also ordered

Plaintiff either to obtain new counsel within thirty days of the order or submit a statement

that he intended to proceed without counsel along with providing the Court with his current

address and phone number. (Id.) Mr. Shepard personally served the order on Plaintiff.

(Dkt. 37.) Plaintiff failed to comply with either of his options.

Two months later, on August 12, 2010, the Court ordered Plaintiff to comply with the

June 15, 2010, “on or before August 26, 2010.” (Dkt. 38.) The Court sent the order to the

only address it had for Plaintiff. That order also provided that, if Plaintiff failed to comply,

Defendant should file an appropriate motion by September 27, 2010. (Id.) 

On September 9, 2010, Defendant filed this motion to dismiss due to Plaintiff’s failure

to comply with the Court’s orders. (Dkt. 39.) Plaintiff failed to respond to the motion. On

November 11, 2010, the Court ordered Plaintiff to respond on or before November 30,

2010. He failed to respond, yet again.

II. Analysis
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Both the Federal Rules of Civil Procedure and the Eastern District of Michigan’s Local

Rules give the Court the authority to dismiss an action due to a party’s failure to prosecute.

Fed. R. Civ. P. 41(b); E.D. Mich. LR 41.2. Dismissal is within the Court’s discretion due

to a party's failure to prosecute. Mulbah v. Detroit Bd. of Educ., 261 F.3d 589, 589 (6th Cir.

2001). In exercising its authority, the Court considers the following factors: (1) whether the

party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary has been

prejudiced by the proposed dismissed party’s conduct; (3) whether the Court warned the

proposed dismissed party that failure to comply could lead to dismissal; and (4) whether

the Court imposed less drastic sanctions before it decided to dismiss the action. Id.

(Citations omitted.) No single factor outweighs the others in the Court’s decision; instead,

the Court views the factors as guideposts in its determination. Muncy v. G.C.R. Inc., 110

F. App’x 552, 555 (6th Cir. 2004). 

When a court decides whether to dismiss an action for failure to prosecute, it may

dismiss the action with or without prejudice. When a court dismisses an action with

prejudice, it should do so “only in extreme situations showing a clear record of delay or

contumacious conduct by the plaintiff.” Vinci v. Consolidated Rail Corp., 927 F.2d 287 (6th

Cir. 1997) (internal quotation marks and citations omitted); see also Muncy, 110 F. App’x

at 556. When a court dismisses an action without prejudice, it can apply the guidepost

factors more leniently, “because the dismissed party is ultimately not irrevocably deprived

of his day in court.” Muncy, 110 F. App’x at 556. (Citation omitted.)

Here, the Court finds that the facts warrant it to dismiss Plaintiff’s complaint with

prejudice. As to the first factor, the Court ordered Plaintiff to obtain new counsel or file

notice with the Court that he was going to proceed without counsel; he neglected to do so,
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despite personally receiving the order on June 21, 2010, almost six months ago. This

failure evidences willfulness, bad faith, and fault. He also failed to comply with the Court’s

other orders requiring his response. (Dkt. 38, 40.) Plaintiff’s disregard for the Court’s

orders is clear–his absence on the docket reflects his abandonment of this action.

Defendant is prejudiced by Plaintiff’s inaction. Defendant should not have to bring

motion after to motion to keep this action afloat while Plaintiff does nothing. Even when Mr.

Shepard represented Plaintiff, Defendant had difficulty in getting discovery from Plaintiff

and his counsel. (Dkt. 29.; Def.'s Mot. at 6.) Defendant therefore satisfies the second

factor.

Defendant also satisfies the third factor–the Court warned Plaintiff. The Court sent

notice to the only address it has for Plaintiff, warning him that his failure to obtain new

counsel or notify the Court that he would proceed pro se would lead to Defendant’s filling

an “appropriate motion” for dismissal of his action. (Dkt. 38.) 

Respecting the fourth factor, although the Court has not previously imposed a lesser

sanction on Plaintiff, it still finds dismissal with prejudice appropriate due to Plaintiff’s bad

faith and the fact that he had notice to appear before the Court. See Polk-Osumah v.

Wayne County, Michigan, 205 F.R.D. 199, (E.D. Mich. 2001) (Hood, J.) (citing Knoll v. AT

& T Co., 176 F.3d 359, 363-64 (6th Cir. 1999) for the proposition that a district court can

dismiss an action with prejudice if the party receives notice and the trial court finds bad

faith). 

The Court therefore finds that the factors weigh in favor of dismissing Plaintiff's claim

with prejudice.

III. Conclusion
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The Court therefore GRANTS Defendant’s motion and DISMISSES Plaintiff’s

complaint with prejudice due to his failure to respond to this Court’s orders and respond to

Defendant’s motion to dismiss.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: December 15, 2010

I hereby certify that a copy of the foregoing document was served upon counsel of record

on December 15, 2010, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager