United States District Court, W.D. Kentucky, Louisville
SAVANNA D. JOLLY PLAINTIFF
TGS LOUISVILLE - MILL BROOK DRIVE, LLC DEFENDANT
Charles R. Simpson III, Senior Judge
matter is before the Court on Defendant's Motion to
Dismiss Plaintiff's claims pursuant to Federal Rule of
Civil Procedure 41(b). (DN 14). For the following reasons,
the Court will GRANT Plaintiff's motion.
Savanna D. Jolly (“Jolly”) initiated this action
on October 26, 2017 alleging various federal and state law
employment discrimination claims against Defendant TGS
Louisville - Mill Brook Drive, LLC (“TGS”). (DN
1). On November 21, 2017, TGS filed its answer to Jolly's
complaint. (DN 5). Thereafter, the Court entered a scheduling
order setting forth a discovery plan for the preparation of
the case for trial. (DN 9).
April 19, 2018, TGS served its first Interrogatories and
Requests for Production of Documents on Jolly. (DN 10). Jolly
requested an extension of time until June 8, 2018 to respond
to the discovery requests. (Id.). However, on June
13, 2018, Jolly's Counsel advised TGS that they had lost
touch with his client. (Id.). On June 29, 2018,
Jolly's Counsel again advised TGS that he still had been
unable to contact his client. (Id.).
5, 2018, TGS filed a Motion for Telephonic Conference on
Discovery which outlined its efforts to obtain responses to
its discovery requests from Jolly. (Id.). Then, on
August 16, 2018, Jolly's Counsel moved to withdraw as
counsel of record. (DN 12). According to Counsel, Jolly
failed to cooperate “in providing information and
documentation necessary to respond to discovery propounded
upon [Jolly] by [TGS] in this case despite repeated
attempts” by Counsel to obtain compliance of Jolly.
(Id.). Counsel further explained that Jolly's
lack of cooperation made it impossible for Counsel “to
prosecute her claims and to otherwise meet discovery
obligations in this matter.” (Id.).
August 23, 2018, the magistrate judge granted Counsel's
motion to withdraw during a telephonic status conference and
ordered that “Jolly shall have fifteen days to either
obtain new counsel or indicate her intent to proceed pro se
or otherwise.” (DN 13). Fifteen days came and went
without any word from Jolly. The magistrate judge, after
noting that Jolly failed to comply with his previous order,
extended Jolly's deadline to obtain new counsel or notify
the Court of her intentions to proceed pro se to October 5,
2018. (DN 14). On October 12, 2018, TGS filed its motion to
dismiss for failure to prosecute. (DN 15). Jolly, perhaps
unsurprisingly, filed no response. To this date, Jolly has
failed to advise the Court whether she obtained new counsel
or intends to proceed pro se.
moves to dismiss the case pursuant to Federal Rule of Civil
Procedure 41(b). (DN 15). 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(b) usually “operates as an
adjudication on the merits.” Id. District
courts may use this rule “as a tool to effect
‘management of its docket and avoidance of unnecessary
burdens on the tax-supported courts [and] opposing
parties.'” Knoll v. Am. Tel. & Tel.
Co., 176 F.3d 359, 363 (6th Cir. 1999) (quoting In
re 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)). None of these factors is
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)).
Jarmon v. Intuitive Surgical, Inc., a case similar
to the instant matter, this Court dismissed the action
pursuant to Rule 41(b) after considering the above four
factors. No. 3:15-cv-00334-CRS-DW, 2017 WL 939325 (W.D. Ky.
March 9, 2017). In Jarmon, the plaintiff's
attorney moved to withdraw as counsel of record because
plaintiff and counsel disagreed about “crucial aspects
of the case and the merits of certain allegations, facts, and
issues.” Id. at *1. The magistrate judge
granted the motion to withdraw and ordered the plaintiff to
secure new counsel or file notice of ...