Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Strunk v. Liberty Insurance Corporation

United States District Court, E.D. Kentucky, Central Division

May 20, 2019

JACK A. STRUNK, Plaintiff,
v.
LIBERTY INSURANCE CORPORATION, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOSEPH M. HOOD, SENIOR U.S. DISTRICT JUDGE

         On May 2, 2019, the Court entered an order requiring Plaintiff Jack Strunk to show cause no later than May 16, 2019, why this action should not be dismissed for failure to prosecute. [DE 13]. At present, Strunk has failed to respond to the Court's show cause order and the time for a response has passed.

         Here, dismissal of this action is justified for three reasons. First, Strunk's failure to comply with the Court's show cause order demonstrates a disregard for the Court's orders and instructions and indicates that Strunk is no longer interested in diligently prosecuting this action. Second, Strunk has failed to properly name previously unknown or John Doe defendants even though the previously unknown defendants have apparently been identified and the Court has warned Strunk on multiple occasions that named defendants must be substituted for unidentified or John Doe defendants after discovery. As a result, this action is DISMISSED WITH PREJUDICE.

         I. Procedural History

         Plaintiff Jack Strunk initially brought this lawsuit against Liberty Insurance Corporation and two “Unknown Defendants.” [DE 1]. On February 20, 2019, the Court dismissed all claims against Liberty with prejudice. [DE 10]. That left only two unidentified defendants in this action. After dismissal of Liberty, the Court explained that Strunk had to identify and substitute named Defendants in place of the unknown or John Doe defendants if this action was to continue. [DE 10 at 5-6, Pg ID 59-60].

         Subsequently, on March 8, 2019, Strunk filed a status report indicating that the identities of the two Unknown Defendants had been determined as Karen Roark and Jeff Rich. [DE 11]. Additionally, Strunk indicated that he intended to pursue claims against these now identified defendants. [Id.]. In response, the Court continued all remaining deadlines in the scheduling order between Strunk and Liberty. [DE 12].

         Time passed. Strunk never moved to amend his complaint to substitute named parties for the two previously unknown defendants. As such, on May 2, 2019, the Court entered an order again explaining that Strunk had to substitute named defendants for the previously unknown defendants and requiring Strunk to show cause no later than May 16, 2019, why the action should not be dismissed for failure to prosecute. [DE 13]. Strunk has not replied to the Court's show cause order and the time to respond has passed. Thus, this action is ripe for review.

         II. Analysis

         Strunk's failure to substitute named defendants for the previously unknown defendants and failure to respond to the Court's show cause order indicates that Strunk has failed to diligently prosecute this matter and suggests that Strunk is not interested in diligently litigating this action going forward.

         Federal Rule of Civil procedure 41(b) “gives courts the authority to dismiss a case for ‘failure of the plaintiff to prosecute or to comply with these rules or any order of the court.'” Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 362-63 (6th Cir. 1999) (citing Fed.R.Civ.P. 41(b)). The Sixth Circuit has held that district courts must be given substantial discretion in docket management and avoidance of unnecessary burdens on tax-supported courts and opposing parties. Id. at 363 (citing Matter of Sanction of Baker, 744 F.2d 1438, 1441 (10th Cir. 1984)).

         Four factors are to be considered when determining whether an action should be dismissed for failure to prosecute: “(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 of the action.” Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 589 (6th Cir. 2001). The relevant factors are considered below.

         A. Strunk's failure to comply with the Court's orders and instructions is due to fault.

         While the Court hesitates to impute willfulness or bad faith on the part of the Plaintiff for failure to respond, there is a clear indication that the failure to prosecute in this matter is due to the fault of the Plaintiff.

         First, on multiple occasions, the Court noted that if Strunk wished to continue this action against the unknown defendants that he must substitute named defendants for the previously unknown defendants since ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.