Doe et al v. Southwestern City School District Board of Education et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JANE DOE and PARENT 1,
Plaintiffs,
v.
MARC DILLARD, et al.,
Defendants.
Civil Action 2:24-cv-4157
Judge Michael H. Watson
Magistrate Judge Chelsey M. Vascura
REPORT AND RECOMMENDATION
This matter is before the undersigned for a Report and Recommendation on Plaintiffs’
failure to comply with the Court’s September 24, 2025, December 19, 2025, and January 8, 2026
Orders. (ECF Nos. 19, 21, 22.) Those Orders required Plaintiffs to inform the Court if they
intended to proceed pro se, and if so, to provide an updated mailing address. (Id.) To the extent
Plaintiffs intended to retain new counsel, the Orders required them to have new counsel enter an
appearance. (Id.) To date, however, Plaintiffs have failed to comply with these Orders or
requested an extension of time to do so.
Under these circumstances, the undersigned recommends dismissal of Plaintiffs’ action
under Rule 41(b). The Court’s inherent authority to dismiss a plaintiff’s action with prejudice
because of his or her failure to prosecute is expressly recognized in Rule 41(b), which provides
in pertinent part: “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 order
states otherwise, a dismissal under this subdivision (b) . . . operates as an adjudication on the
merits.” Fed. R. Civ. P. 41(b); Link v. Walbash R.R. Co., 370 U.S. 626, 629–31 (1962). “This
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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, 363 (6th Cir. 1999) (internal citations omitted).
The Sixth Circuit directs the district courts to consider 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 Dep’t, 529 F.3d 731, 737 (6th Cir. 2008) (citing
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).
Here, Plaintiffs failed to comply with the Court’s Orders instructing them to inform the
Court if they were proceeding pro se, to provide the Court with a mailing address if so, and to
have counsel enter an appearance if not. (ECF Nos. 19, 21, 22.) Moreover, the Court explicitly
cautioned Plaintiffs that failure to comply may result in dismissal of this action. See Stough v.
Mayville Cmty. Schs., 138 F.3d 612, 615 (6th Cir. 1998) (“[p]rior notice, or the lack thereof, is
. . . a key consideration” in whether dismissal under rule 41(b) is appropriate). Plaintiffs’ failure
to timely comply with the clear orders of the Court, which established reasonable deadlines for
compliance, constitutes bad faith or contumacious conduct. See Steward v. Cty. of Jackson,
Tenn., 8 F. App’x 294, 296 (6th Cir. 2001) (concluding that a plaintiff’s failure to comply with a
court’s order “constitute[d] bad faith or contumacious conduct and justifie[d] dismissal”).
Moreover, because Plaintiffs have disregarded the Court’s Orders, the undersigned concludes
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that no alternative sanction would protect the integrity of the pretrial process. It is therefore
RECOMMENDED that the Court DISMISS THIS ACTION under Rule 41(b) for failure to
prosecute.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A District Judge of this Court shall make a de novo
determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a District Judge of this Court may accept,
reject, or modify, in whole or in part, the findings or recommendations made herein, may receive
further evidence or may recommit this matter to the Magistrate Judge with instructions. 28
U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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