United States District Court, E.D. Kentucky, Central Division
JACK A. STRUNK, Plaintiff,
LIBERTY INSURANCE CORPORATION, et al., Defendants.
MEMORANDUM OPINION AND ORDER
M. HOOD, SENIOR U.S. DISTRICT JUDGE
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
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.
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].
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].
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.
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
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)).
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.
Strunk's failure to comply with the Court's orders
and instructions is due to fault.
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.
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 ...