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Phoenix Quality, LLC v. Fyffe

United States District Court, W.D. Kentucky, Bowling Green Division

March 23, 2015

PHOENIX QUALITY, LLC, Plaintiff,
v.
DARIAN FYFFE, Defendant.

REPORT AND RECOMMENDATION

H. BRENT BRENNENSTUHL, Magistrate Judge.

The undersigned submits this report regarding the status of the case and recommends that it be dismissed without prejudice due to Plaintiff's failure to prosecute the action.

Plaintiff Phoenix Quality, LLC ("Phoenix") filed this action on February 16, 2012, (DN 1) against Defendants Omico, Inc., and Darrian Fyffe. Phoenix's complaint alleged wrongful conduct of Fyffe as a former employee and Omico as a subsequent employer. Phoenix subsequently amended the complaint to join First Call Temporary Services, Inc. (DN 25). Eventually, Phoenix resolved the claims against Omico, Inc., and First Call Temporary Services, Inc., and they were dismissed from the action (DN 23 & 67). Only Defendant Fyffe remains. Fyffe defends pro se, and the claims against him are currently stayed due to his personal bankruptcy filing (DN 63).

On January 13, 2015, Phoenix's counsel filed a motion for leave to withdraw as counsel (DN 70). They explained that they had been unable to contact their client since May 16, 2014, some eight months earlier, despite repeated efforts to make contact in the interim. The undersigned granted the motion to withdraw (DN 73) and entered an order directing Phoenix to have substitute counsel enter an appearance within 30 days of the order. As Phoenix is a business entity and therefore unable to proceed pro se, the undersigned further admonished Phoenix that failure to have substitute counsel enter an appearance by the deadline would be construed as an indication that Phoenix no longer wished to prosecute the case and the undersigned would recommend dismissal for failure to prosecute. There have since been no filings on behalf of Phoenix, and deadline has expired.

Fed. R. Civ. P. 41(b) authorizes the involuntary dismissal of an action if the plaintiff fails to prosecute it or comply with an order of the court. See Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991) ("Fed. R. Civ. P. 41(b) recognizes the power of the district court to enter a sua sponte order of dismissal."). Additionally, courts have inherent power "acting on their own initiative, to clear their calendars of cases that have remained dormant because of the inaction of dilatoriness of the parties seeking relief." Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962). The present case presents precisely this situation.

RECOMMENDATION

For the foregoing reasons, the undersigned recommends that the action be dismissed, without prejudice, due to Plaintiff's failure to comply with the order of this court and to prosecute the action in a timely manner.


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