McKendry v. PNC Bank, N.A. et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SEAN W. MCKENDRY,
Plaintiff, 	Hon. Paul L. Maloney
v. 	Case No. 1:26-cv-00330
PNC BANK, N.A., et al.,
Defendant.
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REPORT AND RECOMMENDATION
Plaintiff initiated this action on January 29, 2026, and filed an application to
proceed in this Court without prepaying fees or costs, or to proceed in forma pauperis
(IFP), on the incorrect form. (ECF Nos. 1, 2). On January 30, 2026, the Court issued
an Order for Plaintiff to, “within seven days from entry of [the] order, submit an
amended application on the required AO Form 239.” (ECF No. 5, PageID.23).
Plaintiff failed to submit an amended application, and the Court issued a Show Cause
Order, requiring Plaintiff to explain “why his case should not be dismissed for want of
prosecution and [for his] failure to comply with the Court’s Order” by March 16, 2026.
(ECF No. 7, PageID.25). The Court also warned Plaintiff that “[f]ailure to comply with
th[e] Order may result in the dismissal of this case for want of prosecution.” (Id.).
Plaintiff failed to respond to the Show Cause Order. Pursuant to 28 U.S.C.
§ 636(b)(1)(B), the undersigned recommends that Plaintiff’s complaint be dismissed.
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ANALYSIS
“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 v. Wabash
Railroad Co., 370 U.S. 626, 629 (1962). This authority “is necessary in order to prevent
undue delays in the disposition of pending cases and to avoid congestion in the calendars
of the District Courts.” Id. at 629-30. Failure by a plaintiff to prosecute constitutes
grounds to dismiss the complaint, or any particular claims therein. See FED. R. CIV.
P. 41(b).
When examining whether dismissal for failure to prosecute is appropriate, the
Court must consider the following factors: (1) whether the party’s failure to cooperate is
due to willfulness, bad faith, or fault; (2) whether the adversary is prejudiced by the
party’s dilatory 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. See Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC
Trucks, Inc., 173 F.3d 988, 992 (6th Cir. 1999). These factors weigh in favor of dismissal
here. Notably, Plaintiff was warned that failure to respond and comply with the Court’s
order would result in dismissing Plaintiff’s complaint. (ECF No. 7, PageID.25).
Accordingly, the undersigned judicial officer recommends that the Court dismiss the
complaint for want of prosecution.
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CONCLUSION
For the reasons discussed herein, the undersigned recommends that Plaintiff’s
complaint be dismissed without prejudice. For the same reasons the undersigned
makes these recommendations, the undersigned further recommends that an appeal
of this matter by Plaintiff would not be in good faith. Coppedge v. United States, 369
U.S. 438, 445 (1962).
OBJECTIONS to this Report and Recommendation must be filed with the Clerk
of Court within fourteen days of the date of service of this notice. 28 U.S.C.
§ 636(b)(1)(C). Failure to file objections within the specified time waives the right to
appeal the District Court’s order. See Thomas v. Arn, 474 U.S. 140 (1985); see also
States v. Walters, 638 F.2d 947 (6th Cir.1981).
Respectfully submitted,
Dated: April 7, 2026 	/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge
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