Opinion
Case No. 2:19-cv-00087
06-18-2021
CARY BROWN, Plaintiff, v. ELITE TECHNICIAN MANAGEMENT GROUP, LLC, Defendant.
Chief Judge Waverly D. Crenshaw, Jr.
To: The Honorable Waverly D. Crenshaw, Jr., Chief District Judge REPORT AND RECOMMENDATION
Plaintiff Cary Brown filed this action with counsel on November 6, 2019, alleging that his former employer, Defendant Elite Technician Management Group, LLC, failed to pay him overtime in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b). (Doc. No. 1.) On April 9, 2020, Brown's attorneys filed a motion to withdraw as counsel, stating that they had lost contact with their client. (Doc. No. 14.) The Court granted counsel's motion to withdraw and ordered Brown "to either (1) ensure that new counsel has entered an appearance on his behalf, or (2) file a notice regarding his intent to represent himself going forward" by no later than November 20, 2020. (Doc. No. 19, PageID# 53.) The Court warned Brown that failure to comply with the order would "likely result in a recommendation that this action be dismissed without prejudice under Rule 41(b) for his failure to prosecute." (Id.) Because over 200 days have elapsed since the deadline and Brown has not responded to that order, and for the reasons that follow, the Magistrate Judge will recommend that Brown's claims be dismissed without prejudice under Rule 41(b) for failure to prosecute.
I. Factual and Procedural Background
Brown initiated this action on November 6, 2019, by filing a complaint against Elite Technician Management Group under the FLSA. (Doc. No. 1.) An initial case management conference was set on April 13, 2020 (Doc. No. 9), but was cancelled after Brown's attorneys, G. Brandon Hall and Jonathan A. Street, informed the Court that they had lost contact with Brown and filed a motion to withdraw from representation (Doc. Nos. 14, 15). Counsel attached copies of two letters informing Brown of their intent to withdraw, which were dated February 10, 2020, and March 12, 2020, and sent to the address Brown has on file with the Court. (Doc. Nos. 14-1-14-3.) Hall and Street stated that their letters were returned undelivered and that attempts to call Brown had also been unsuccessful. (Doc. No. 14.) The Court granted the motion to withdraw on October 30, 2020, expressing "concern[ ] that Brown may have abandoned his claims in this action." (Doc. No. 19, PageID# 52.) The Court ordered Brown "to either (1) ensure that new counsel has entered an appearance on his behalf, or (2) file a notice regarding his intent to represent himself going forward" by November 20, 2020. (Id. at PageID# 53.) Hall and Street were ordered to provide Brown with a copy of the order, and Brown was warned that failure to respond would likely result in a recommendation that his claims be dismissed under Rule 41(b). (Doc. No. 19.) Brown has not responded and has not informed the Court of an updated address.
II. Legal Standard
Federal Rule of Civil Procedure 41(b) "confers on district courts the authority to dismiss an action for failure of a plaintiff to prosecute the claim or to comply with the Rules or any order of the court." Schafer v. City of Defiance Police Dep't, 529 F.3d 731, 736 (6th Cir. 2008) (citing Knoll v. AT&T, 176 F.3d 359, 362-63 (6th Cir. 1999)); see also Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962) (recognizing "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"); Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) ("It is well settled that a district court has the authority to dismiss sua sponte a lawsuit for failure to prosecute."). Dismissal for failure to prosecute is a tool for district courts to manage their dockets and avoid unnecessary burdens on opposing parties and the judiciary. See Schafer, 529 F.3d at 736 (quoting Knoll, 176 F.3d at 363). The Sixth Circuit therefore affords district courts "substantial discretion" regarding decisions to dismiss for failure to prosecute. Id.
Courts look to four factors for guidance when determining whether dismissal under Rule 41(b) is appropriate: (1) the willfulness, bad faith, or fault of the plaintiff; (2) whether the defendant has been prejudiced by the plaintiff's conduct; (3) whether the plaintiff was warned that failure to cooperate could lead to dismissal; and (4) the availability and appropriateness of other, less drastic sanctions. Knoll, 176 F.3d at 363 (citing Stough v. Mayville Cmty. Sch., 138 F.3d 612, 615 (6th Cir. 1998)). Under Sixth Circuit precedent, "none of the factors is outcome dispositive," but "a case is properly dismissed by the district court where there is a clear record of delay or contumacious conduct." Id. (citing Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980)); see also Muncy v. G.C.R., Inc., 110 F. App'x 552, 555 (6th Cir. 2004) (finding that dismissal with prejudice "is justifiable in any case in which 'there is a clear record of delay or contumacious conduct on the part of the plaintiff'" (quoting Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 591 (6th Cir. 2001))). Because dismissal without prejudice is a relatively lenient sanction as compared to dismissal with prejudice, the "controlling standards should be greatly relaxed" for Rule 41(b) dismissals without prejudice where "the dismissed party is ultimately not irrevocably deprived of his [or her] day in court." Muncy, 110 F. App'x at 556 (citing Nwokocha v. Perry, 3 F. App'x 319, 321 (6th Cir. 2001)); see also M.D. Tenn. R. 41.01 (dismissal of inactive cases) (allowing Court to summarily dismiss without prejudice "[c]ivil suits that have been pending for an unreasonable period of time without any action having been taken by any party").
This Court's Local Rules provide that a pro se party "must keep the Court and opposing parties apprised of the pro se party's current address and other contact information," and explain that a pro se party's failure "to timely notify the Court and opposing parties of any change in address may result in dismissal of the action with or without prejudice." M.D. Tenn. R. 41.01(b) (dismissal for failure of pro se plaintiff to keep court apprised of current address). The Local Rules further provide that "[c]ivil suits that have been pending for an unreasonable period of time without any action having been taken by any party may be summarily dismissed . . . without prejudice to refile or to move the Court to set aside the order of dismissal for just cause." M.D. Tenn. R. 41.01(a) (dismissal for unreasonable delay). Where, as here, noncompliance with local rules is a ground for dismissal, "the behavior of the noncomplying party [must] rise[] to the level of a failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure." Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick & GMC Trucks, Inc., 173 F.3d 988, 992 (6th Cir. 1999).
III. Analysis
Given Brown's failure to respond to the Court's order requiring him to either have new counsel enter an appearance on his behalf or file a notice stating his intent to represent himself, he is presumed to be proceeding pro se. Dismissal of this action is appropriate under Rule 41(b) because the four relevant factors, considered under the "relaxed" standard for dismissals without prejudice, show a record of delay by Brown.
A. Bad Faith, Willfulness, or Fault
A plaintiff's actions demonstrate bad faith, willfulness, or fault where they "display either an intent to thwart judicial proceedings or a reckless disregard for the effect of [plaintiff's] conduct on those proceedings." Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005) (quoting Mulbah, 261 F.3d at 591)). There is no indication that Brown's failure to respond to his attorneys' communications or the Court's order regarding representation were motivated by bad faith. However, his inaction still reflects "willfulness and fault" for purposes of Rule 41(b). Hatcher v. Dennis, No. 1:17-cv-01042, 2018 WL 1586235, at *1 (W.D. Tenn. Mar. 30, 2018) (explaining that, "[a] party's failure to respond in the face of a warning by the court that such failure could result in dismissal of a complaint tips the scale in favor of dismissal on the first factor"); see also Crisp v. Fed. Express Corp., No. 06-2761, 2007 WL 2080545, at *2 (W.D. Tenn. July 16, 2007) (dismissing case under Rule 41(b) where plaintiff failed to respond to attorneys' attempts to contact him, their motion to withdraw, or court order that he file notice of his intent to continue litigation).
B. Prejudice
The Sixth Circuit has held that "[a] defendant is prejudiced by a plaintiff's dilatory conduct if the defendant is 'required to waste time, money, and effort in pursuit of cooperation which [the plaintiff] was legally obligated to provide.'" Carpenter, 723 F.3d at 707 (second alteration in original) (quoting Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997)); see also Schafer, 529 F.3d at 739 (same). Such prejudice typically arises in the discovery context. See, e.g., Harmon, 110 F.3d at 368 (finding prejudice where plaintiff failed to respond to defendant's interrogatories and a related motion to compel); Wright v. City of Germantown, No. 11-02607, 2013 WL 1729105, at *2 (W.D. Tenn. Apr. 22, 2013) (finding prejudice where defendant "expended time and money pursuing [plaintiff's] required initial disclosures and deposition testimony"). Notably, time and effort spent on "typical steps in the early stages of litigation[,]" such as answering a complaint or filing pretrial motions to advance the defendant's position, are not actions "necessitated by any lack of cooperation" and therefore do not weigh in favor of dismissal for failure to prosecute. Schafer, 529 F.3d at 739. The Sixth Circuit explained in Schafer v. City of Defiance Police Department that "[i]f such efforts . . . [were] alone sufficient to establish prejudice," for the purpose of Rule 41(b), "then every defendant who answers a complaint and responds minimally to a lawsuit would be able to claim prejudice[,]" a "result [that] would defy common sense." 529 F.3d at 740.
Discovery has not commenced in this case, and there is no indication that Elite Technician Management has been forced to expend time and resources as a result of Brown's failure to prosecute. This factor weighs against dismissal.
C. Prior Notice
Whether a party was warned that failure to cooperate could lead to dismissal "is a 'key consideration'" in the Rule 41(b) analysis. Schafer, 529 F.3d at 740 (quoting Stough, 138 F.3d at 615). Here, the Court warned Brown that failure to respond to its order concerning representation could lead to a recommendation that his claims be dismissed. (Doc. No. 19.) This factor supports dismissal. Schafer, 529 F.3d at 740; see also Wright, 2013 WL 1729105, at *3 (granting motion to dismiss for failure to prosecute where court's prior orders warned plaintiff "that her conduct could result in dismissal").
D. Appropriateness of Other Sanctions
The less-drastic sanction of dismissal without prejudice is available and appropriate here. Dismissal without prejudice balances the Court's interest in "sound judicial case and docket management" with "the public policy interest in the disposition of cases on their merits." Muncy, 110 F. App'x at 557 n.5; see also Mulbah, 261 F.3d at 590-91. Such a sanction is particularly appropriate in cases of prolonged inactivity and where, as here, the plaintiff appears pro se. See Schafer, 529 F.3d at 737 (noting that courts apply the four-factor test "more stringently in cases where the plaintiff's attorney's conduct is responsible for the dismissal" (quoting Harmon, 110 F.3d at 367)).
IV. Recommendation
Considering the above four factors, the Magistrate Judge RECOMMENDS that this action be DISMISSED WITHOUT PREJUDICE under Rule 41(b) for Brown's failure to prosecute.
Any party has fourteen days after being served with this Report and Recommendation to file specific written objections. Failure to file specific objections within fourteen days of receipt of this report and recommendation can constitute a waiver of appeal of the matters decided. Thomas v. Arn, 474 U.S. 140, 155 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004). A party who opposes any objections that are filed may file a response within fourteen days after being served with the objections. Fed. R. Civ. P. 72(b)(2).
Entered this 18th day of June, 2021.
/s/_________
ALISTAIR E. NEWBERN
United States Magistrate Judge