United States District Court, W.D. Kentucky, Louisville
STEPHEN E. JARMON PLAINTIFF
INTUITIVE SURGICAL, INC. DEFENDANT
Charles R. Simpson III, Senior Judge.
matter is before the Court on the motion of Defendant
Intuitive Surgical, Inc. to dismiss the claims of Plaintiff
Stephen E. Jarmon under Federal Rule of Civil Procedure
41(b). Mot. Dismiss 1, ECF No. 37. Magistrate Judge Dave
Whalin ordered Jarmon to respond to Intuitive Surgical,
Inc.'s motion to dismiss by December 9, 2016. Order
11/16/16, ECF No. 38. Jarmon did not respond. Thereafter,
Intuitive Surgical, Inc. filed a renewed motion to dismiss
the claims under Rule 41(b). Renewed Mot. Dismiss 1, ECF No.
39. For the reasons discussed below, the Court will grant
Intuitive Surgical, Inc.'s renewed motion to dismiss
Jarmon's claims. The Court will deny Intuitive Surgical,
Inc.'s original motion to dismiss the claims as moot.
August 22, 2016, Jarmon's former attorney, Howard L.
Robinson, moved to withdraw as counsel of record in this
matter. Mot. Withdraw 1, ECF No. 34. According to Robinson,
Jarmon disagreed with him about “the merits of certain
crucial allegations” in the case and that Jarmon had
twice hung up on him “using very unpleasant
language” during his attempt to speak about the case
via telephone. Id. ¶¶ 3-4. Robinson
additionally affirmed that Jarmon had refused to accept his
analysis regarding crucial aspects of the case and the merits
of certain allegations, facts, and issues. Id.
magistrate judge granted Robinson's motion to withdraw as
counsel of record. Order 8/24/16, ECF No. 35. The magistrate
judge also ordered Jarmon to secure new counsel or to file a
notice that he intends to proceed with the case pro se within
thirty days. Id. On September 7, 2016, the
magistrate judge extended Jarmon's deadline to find
counsel or to notify the Court of his intentions to proceed
pro se to October 14, 2016. Order 9/7/16, ECF No. 36. Jarmon
has neither secured new counsel, nor has he filed a notice
that he intends to proceed pro se.
Surgical, Inc. now moves to renew its motion to dismiss the
case pursuant to Federal Rule of Civil Procedure 41(b).
Renewed Mot. Dismiss 1, ECF No. 39. Rule 41(b) provides that
a court may dismiss an action “[i]f the plaintiff fails
to prosecute or to comply with . . . a court order.” A
dismissal under Rule 41 usually “operates as an
adjudication on the merits.” Id. District
courts use Rule 41(b) “as a tool to affect
‘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) (citing Matter of Sanction of
Baker, 744 F.2d 1438, 1441 (10th Cir. 1984)).
sixth circuit, courts consider four factors when deciding
whether to dismiss an action 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.”
Id. (citing Stough v. Mayville Cmty. Sch.,
138 F.3d 612, 615 (6th Cir. 1998)). Each of these factors is
not typically outcome determinative; rather “it is said
that 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)).
v. Kentucky Department of Military Affairs, a case
before the United States District Court for the Eastern
District of Kentucky, provides one example of a court's
decision to dismiss an action pursuant to Rule 41(b) after
considering these factors. No. 13-174-GFVT, 2015 U.S. Dist.
LEXIS 152042, at *3 (E.D. Ky. Nov. 10, 2015). In
Ludwig, the plaintiff's attorney moved to
withdraw as counsel of record. Id. at *1. The
attorney explained that the plaintiff “failed to attend
a scheduled meeting, failed to respond to subsequent emails
and telephone calls, and failed to respond to a letter
warning of withdrawal if Plaintiff would not be more
responsive.” Id. The magistrate judge granted
the motion to withdraw and ordered the plaintiff to obtain
new counsel or to file a notice of intent to proceed pro se
within twenty-one days. Id. The plaintiff did
neither. Id. at *2. The magistrate judge thus
recommended to the district court that the case be dismissed
under Rule 41(b). Id.
district court considered the four Rule 41(b) factors in
reviewing the recommendation of the magistrate judge to
dismiss the case. Id. at *3. The district court
determined that the plaintiff no longer intended to
participate in the case, that the plaintiff's inaction
prejudiced the defendants by subjecting them to continued
liability, and that she was given adequate warnings and
notice about finding new counsel or notifying the court of
her intent to proceed pro se. Id. Therefore, the
district court adopted the recommendation of the magistrate
judge and dismissed the plaintiff's claims with prejudice
under Rule 41(b). Id.
case, the first Rule 41(b) factor, whether the party's
failure is due to willfulness, bad faith, or fault, supports
dismissal. Jarmon clearly intends to no longer participate in
this case. The magistrate judge has extended the deadline for
Jarmon to secure counsel or to file notice of his intention
to proceed pro se multiple times. Order 8/24/16, ECF No. 35;
Order 9/7/16, ECF No. 36. He has failed to do either.
Moreover, Jarmon did not respond to Intuitive Surgical,
Inc.'s motion to dismiss, despite the magistrate
judge's ordering him to do so. Order 11/16/16, ECF No.
second Rule 41(b) factor, whether the adversary is prejudiced
by the party's conduct, also supports dismissal. As long
as this case remains pending, Intuitive Surgical, Inc. is
subject to potential liability. Regarding the third and
fourth Rule 41(b) factors-whether the dismissed party was
warned that failure to cooperate could lead to dismissal and
whether less drastic sanctions were imposed or
considered-Jarmon was informed several times that he had time
to find new counsel or to notify the Court of his intention
to proceed pro se. Order 8/24/16, ECF No. 35; Order 9/7/16,
ECF No. 36. Jarmon had access to the magistrate judge's
orders, at minimum, through the Court's Electronic Filing
System. He also participated in a status conference in which
the magistrate judge discussed his finding new counsel or
notifying the Court of his intention to proceed pro se.
See Order 9/7/16, ECF No. 36. But Jarmon has not
complied with the magistrate judge's orders or responded
to Intuitive Surgical, Inc.'s motions to dismiss.
Jarmon has had multiple opportunities to communicate with the
Court or otherwise express his intent to proceed with the
case. He has failed to do so. Accordingly, ...