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Throckmorton v. State Auto Insurance Co.

United States District Court, Sixth Circuit

May 22, 2013

JERRY D. THROCKMORTON, Plaintiff,
v.
STATE AUTO INSURANCE COMPANY, Defendant.

MEMORANDUM OPINION AND ORDER

DANNY C. REEVES, District Judge.

This matter is pending for consideration of Defendant State Auto Insurance Company's ("State Auto") Motion to Compel and Motion to Dismiss. [Record Nos. 24, 39] Additionally, pro se Plaintiff Jerry D. Throckmorton has filed a Notice of Withdrawal, stating that he "hereby withdraws his lawsuit." [Record No. 55] For the reasons outlined below, this action will be dismissed, with prejudice.

I.

On March 20, 2013, Throckmorton submitted a copy of a letter purportedly sent from State Auto Representative Bob Redmond to Throckmorton. [Record No. 11-2] Having good cause to believe that the letter was fraudulent, [1] the defendant filed a motion to dismiss on this basis. The Court denied the motion to dismiss at that time, but ordered that the plaintiff produce the original document so that the original letter, as well as all of the documents that the plaintiff relied upon in his case, could be examined by the defendant's expert. [Record No. 20] After some resistance by Throckmorton, [2] the inspection was arranged for April 29, 2013, at the defendant's attorneys' offices in Lexington, Kentucky. [Record Nos. 29, 34] Throckmorton did not appear for the inspection in person. Rather, a Fed-Ex package addressed to the law firm of Landrum & Shouse - purportedly sent from this Court - was delivered to the receptionist's desk by a female not appearing to be a Federal Express employee.[3] The package did not contain the October 2, 2012 letter.

Meanwhile, as outlined in the Court's May 3, 2013 Order, Throckmorton made a number of accusations against the Court, including, but not limited to, allegations that the Court is biased and statements that the Court "has lost its mind."[4] [ See Record No. 43.] The Court held a hearing on May 8, 2013, where the parties appeared and explained their positions regarding the motion to compel. [Record No. 47] Additionally, Throckmorton responded to the Court's Show Cause Order. [Record No. 47] Following that hearing, the Court gave the parties five days to submit all relevant documents, and took the pending motions under advisement. State Auto filed a Memorandum of Law in support of its pending motion to dismiss, including the document examination transcript from its expert and affidavits from several of Landrum & Shouse's employees regarding the events on April 29, 2013. [Record No. 52] On May 13, 2013, Throckmorton filed a Notice of Withdrawal of his Complaint and Lawsuit. [Record No. 55]

II.

This action will be dismissed for several reasons. First, the Court will dismiss the action based on Throckmorton's withdrawal of his complaint. [Record No. 55] Under Rule 41 of the Federal Rules of Civil Procedure, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed.R.Civ.P. 41(a)(2). Because Throckmorton has requested that his action be dismissed, and for the reasons stated in the defendant's motion to dismiss, the Court finds it proper to dismiss the action.

In addition, the action will be dismissed with prejudice. Even without the plaintiff's withdrawal of his complaint, an action may be dismissed where the plaintiff fails to comply with a court order. Fed.R.Civ.P. 41(b); Fed.R.Civ.P. 37(b)(2)(A)(v). Here, dismissal is proper based on Throckmorton's failure to comply with several orders.

Based on the affidavits and video footage provided by the defendant, the Court finds that the plaintiff failed to comply with the Court's April 16, 2013 Order to produce the original of the allegedly fraudulent document for examination. In addition, Throckmorton has continued to ignore the Court's admonition[5] regarding baseless accusations.[6] [ See Record Nos. 12, 14, 21, 34, 41.] Although mindful of the plaintiff's status as a pro se litigant, the Court has exhausted all efforts to require compliance with its orders. In short, dismissal is the only appropriate sanction under the circumstances. A lesser sanction "would not better serve the interests of justice." Consolidation Coal Co. v. Gooding, 703 F.2d 230, 233 (6th Cir. 1983). Accordingly, dismissal, with prejudice, is proper under both Rule 41(b) and Rule 37, as well as the inherent power of the Court to regulate the behavior before it. Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991).

III.

For the foregoing reasons, and for the reasons outlined by the Court during the May 8, 2013 hearing, it is hereby

ORDERED as follows:

1. Plaintiff Jerry D. Throckmorton's Notice of Withdrawal of Complaint/Action [Record No. 55] is GRANTED.

2. Defendant State Auto's Motion to Dismiss with prejudice [Record No. 39] is GRANTED.

3. Defendant State Auto's Motion to Compel [Record No. 24] is DENIED as moot.

4. The May 3, 2013 Show Cause Order [Record No. 43] is SET ASIDE.

5. This action is DISMISSED, with prejudice, and stricken from the Court's docket.


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