Garth v. Hommrich

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

TRACY MARIE GARTH, et al.,

Case No. 3:17-cv-00758

Plaintiffs,

v. Chief Judge Waverly D. Crenshaw, Jr.

Magistrate Judge Alistair E. Newbern

BONNIE HOMMRICH, et al.,

Defendants.

To: The Honorable Waverly D. Crenshaw, Jr., Chief District Judge

REPORT AND RECOMMENDATION

Plaintiff Tracy Marie Garth filed this action with counsel on April 25, 2017, asserting

various claims under federal and state law on behalf of herself and her minor children that stem

from her arrest on April 25, 2016, and the subsequent placement of her children in state custody.

(Doc. No. 1.) In September 2017, Brandon Brown, the minor children’s father, motion to intervene

in the action arguing that, as the children’s custodial parent, he has the right to control their claims.

(Doc. No. 32.) The Court granted Brown’s motion to intervene as unopposed. (Doc. No. 50.) Garth

later filed a motion arguing that she has the superior right to assert the children’s claims. (Doc.

No. 57.) Almost two years later, the Court has yet to resolve this threshold question due to Garth’s

criminal prosecution, which concluded August 12, 2019, and, more recently, Garth’s failure to

respond to this Court’s orders.

On September 9, 2019, after the conclusion of Garth’s criminal proceedings, the Court

ordered Garth and Brown to file renewed motions for the right to control the minor children’s

claims by November 15, 2019. Garth did not file a renewed motion. On October 23, 2019, the

Court granted Garth’s counsel’s motion to withdraw, ordering Garth to file a notice by November

7, 2019, informing the Court whether she had retained new counsel or would be proceeding pro

se. (Doc. Nos. 98, 99). Garth did not respond to that order. On November 20, 2019, the Court

expressed concern that Garth had abandoned her claims, and therefore ordered her to show cause

by December 5, 2019, why her claims should not be dismissed for failure to prosecute under

Federal Rule of Civil Procedure 41(b). (Doc. No. 102.) Because Garth has not responded to that

order, and for the reasons below, the Magistrate Judge will recommend that her claims be

dismissed without prejudice under Rule 41(b) for failure to prosecute.

I. Factual and Procedural Background

Garth initiated this action by filing a complaint under 42 U.S.C. § 1983, the Tennessee

Governmental Tort Liability Act (TGTLA), Tenn. Code Ann. § 29-20-101 et seq., and Tennessee

common law. (Doc. No. 1.) According to the complaint’s allegations, which are taken as true at

this stage of the litigation, Garth pulled into a gas station in Franklin, Tennessee, around midnight

on April 25, 2016. (Id.) She was traveling from her home in Alabama with her minor children,

Plaintiffs ACB and CAB, to shop in Nashville. (Id.) Defendant Sgt. James Phillips of the Franklin

Police Department approached Garth at the station and accused her of “passing a dump truck,

striking an orange traffic cone, failing to stop for law enforcement, and speeding on I-65 North.”

(Id. at PageID# 7, ¶ 15.) Garth was arrested and taken to the Williamson County Jail, where she

was not allowed to speak with an attorney and was “threatened with tasing, harassed, intimidated,

[and] strip searched . . . .” (Id. at PageID# 10, ¶ 35.)

When their mother was arrested, ACB and CAB were left in the custody of Defendant

Police Officer Adam Cowen, who transported them to the Franklin police station. (Doc. No. 1.)

Before a Tennessee of Department and Children’s Services (DCS) investigator arrived, ACB

“suffered disfiguring burns to his mouth, chin and chest” caused by hot water. (Id. at PageID# 12,

¶ 42.) ACB was taken to Vanderbilt Children’s Hospital, where he received emergency treatment.

He and CAB were then placed in foster care in Tennessee. (Doc. No. 1.)

Garth was released from jail on May 10, 2016, and began what became a prolonged battle

with DCS to regain custody of ACB and CAB. (Id.) DCS allowed Garth only eight hours of

supervised visitation with her children per month and sued her for child support. (Id.) ACB and

CAB were released to the custody of their father in October 2016. (Id.) Garth was ultimately

indicted on one count of reckless endangerment with a deadly weapon; two counts of evading

arrest while operating a motor vehicle; two counts of travel on a closed road, speeding, violation

of a no passing zone, and obedience to required traffic control device; and two counts of violation

of the children restraint law. (Id.)

Garth’s complaint asserts the following claims on behalf of herself and ACB and CAB:

o Claims under § 1983 against DCS; former DCS Commissioner Bonnie

Hommrich; DCS employees Emily Kirby, Sarah Fischer, Katherine Nabors,

and Sarah Grey McCroskey; and four unknown DCS employees for

violations of the First, Fourth, and Fourteenth Amendments;

o Claims under § 1983 against the City of Franklin; Franklin Police Officers

Cowen, James Phillips, Charles Richards, and Jesus Coreno; and four

unknown employees of the City of Franklin for violations of the Fourth,

Eighth, and Fourteenth Amendments;

o Claims under § 1983 against Williamson County; former Williamson

County Sheriff Jeff Long; Williamson County Deputy Sheriffs Evan Bohn,

Brandon Rowe, Amber Pater, Cassie Skinner, and Danielle Telkamp; and

four unknown employees of Williamson County for violations of the

Fourth, Eighth, and Fourteenth Amendments;

o A claim under the TGTLA against the City of Franklin for negligent

policing and false imprisonment; and

o A claim under the TGTLA against Williamson County for negligence.

(Doc. No. 1.) Garth, ACB, and CAB each seek $2.5 million in compensatory damages, punitive

damages, and fees and costs. (Id.)

Shortly after initiating this action, Garth’s counsel filed a motion to withdraw (Doc.

No. 14), which the Court granted (Doc. No. 17). Garth’s new counsel entered an appearance on

July 13, 2017, but had not yet associated local counsel as required by the Court’s Local Rules.

(Doc. No. 18.) In response, all of the defendants except Bohn, Skinner, Telkamp, and the unknown

employees of DCS, the City of Franklin, and Williamson County, filed a motion for an extension

of time to respond to the complaint until fourteen days after Garth’s counsel had associated local

counsel and complied with other threshold requirements of the Local Rules. (Doc. No. 19.) The

Court granted that motion. (Doc. No. 20.)

The Court held a case management conference on August 18, 2017, after Brown filed a

motion to intervene. (Doc. Nos. 26, 29.) The Court found that Bohn, Skinner, and Telkamp had

not been served and had not appeared and adjourned the conference to allow for their service.

(Doc. No. 29.) The Court ordered Garth to move for the initial case management conference to be

reset within seven days after all defendants appeared. (Id.) The Court also ordered Brown to file

an amended motion to intervene by September 1, 2017, and stayed all other deadlines, including

the deadline for the defendants to respond to Garth’s complaint, pending the conclusion of the

resumed case management conference. (Id.)

Not long after the Court entered that order, Garth terminated her relationship with her

second attorney. After filing two procedurally defective motions to withdraw that were denied

(Doc. Nos. 30, 31, 36, 38), Garth’s counsel filed a third motion to withdraw (Doc. No. 49) that

was granted (Doc. No. 59). By that time, Garth’s third attorney had already entered an appearance.

(Doc. No. 33.)

Brown filed a timely amended motion to intervene, arguing that, as the sole custodial parent

of ACB and CAB, he is entitled to pursue claims on their behalf. (Doc. No. 32.) Garth did not

respond to that motion, and the Court ultimately granted it as unopposed, determining only that

Brown had a right to intervene in this action. (Doc. No. 50.) On December 6, 2017, Bohn, Skinner,

and Telkamp filed a motion to dismiss for failure to effect service of process under Federal Rules

of Civil Procedure 12(b)(4) and (5). (Doc. Nos. 46, 47.)

The Court held a case management conference on December 19, 2017, at which the parties

agreed to a briefing schedule to address two threshold issues: the pending motion to dismiss and

the question of who would have the right to pursue claims on behalf of ACB and CAB. (Doc.

No. 52.) The Court ordered Garth to file any response in opposition to the motion to dismiss by

December 29, 2017. (Id.) The Court also ordered Garth and Brown to file motions regarding their

rights to bring claims on behalf of the minor plaintiffs by January 19, 2018. (Id.) The parties timely

briefed those issues. (Doc. Nos. 54–58.)

On May 31, 2018, the Court held another case management conference. (Doc. No. 73.)

Garth’s counsel informed the Court that Garth’s “trial on the criminal charges underlying the

claims in this civil action [would] be held on July 9, 2018.” (Id.) The parties agreed that the claims

in this matter would be affected by the result of the trial and the Court stayed this action pending

resolution of Garth’s criminal charges. (Id.) The Court ordered Garth’s counsel to file a notice of

the trial’s resolution within seven days of the judgment. (Id.)

Garth’s trial did not take place on July 9, 2018, and was instead rescheduled and postponed

several times over the course of the next year. (Doc. Nos. 74, 83, 85, 87.) While the case was

stayed, the Magistrate Judge recommended that Bohn, Skinner, and Telkamp’s motion to dismiss

be granted. (Doc. No. 80.) The Court adopted the report and recommendation and dismissed all

claims against those defendants without prejudice. (Doc. No. 82.) On August 13, 2019, Defendants

City of Franklin, Phillips, Richards, Cowen, and Coreno filed a notice stating that Garth had

entered into six negotiated plea agreements resolving the criminal charges against her. (Doc.

Nos. 88, 89.) Those defendants also filed a motion to lift the stay and schedule a case management

conference. (Doc. No. 90.) The Court granted that motion, set a case management conference for

September 9, 2019, and terminated Garth’s and Brown’s motions to determine the right to control

the claims of the minor plaintiffs without prejudice to refiling, finding that circumstances had

changed considerably since the motions were originally filed. (Id.)

Garth’s third counsel filed a procedurally improper motion to withdraw on September 4,

2019 (Doc. No. 94), which the Court denied (Doc. No. 95). At the September 9, 2019, case

management conference, Garth’s counsel informed the Court that he intended to file a renewed

motion to withdraw. (Doc. No. 97.) The Court ordered Garth and Brown to file any renewed

motions for the right to control the claims of the minor plaintiffs by November 15, 2019. (Id.) That

deadline was intended to provide Garth “additional time . . . to either obtain new counsel or proceed

pro se.” (Id. at PageID# 437, ¶ D.1.) Garth’s counsel filed an amended motion to withdraw (Doc.

No. 98), which the Court granted on October 23, 2019 (Doc. No. 99). The Court ordered Garth to

file a notice by November 7, 2019, informing the Court whether she had retained new counsel or

intended to proceed pro se. (Doc. No. 99.)

Garth did not respond to that order, missed the November 15, 2019 deadline to file a motion

to control the claims of the minor plaintiffs, and failed to respond in opposition to Brown’s timely

filed motion (Doc. No. 100). On November 20, 2019, the Court entered an order finding that “[f]or

nearly two years, this case has been stymied by the determination of whether . . . Garth or . . .

Brown has the right to assert civil rights claims raised on behalf of their minor children” and that

Garth was delaying resolution of that question by failing to inform the Court of the status of her

representation. (Doc. No. 102, PageID# 514.) The Court found that Garth appeared to have

abandoned her claims and ordered her to show cause by December 5, 2019, why her claims should

not be dismissed under Federal Rule of Civil Procedure 41(b) for failure to prosecute. (Doc. No.

102.) The Court warned Garth that her failure to respond to the order could result in dismissal of

her claims. (Id.) Garth has not responded.

II. Legal Standard

Federal Rule of Civil Procedure 41(b) “confers on district courts the authority to dismiss

an action for failure of a plaintiff to prosecute the claim or to comply with the Rules or any order

of the Court.” Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 736 (6th Cir. 2008) (citing

Knoll v. AT&T, 176 F.3d 359, 362–63 (6th Cir. 1999)); see also Link v. Wabash R.R. Co., 370 U.S.

626, 630 (1962) (recognizing “the power of courts, acting on their own initiative, to clear their

calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties

seeking relief”); Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (“It is well settled

that a district court has the authority to dismiss sua sponte a lawsuit for failure to prosecute.”).

Dismissal for failure to prosecute is a tool for district courts to manage their dockets and avoid

unnecessary burdens on opposing parties and the judiciary. See Schafer, 529 F.3d at 736 (quoting

Knoll, 176 F.3d at 363). The Sixth Circuit therefore affords district courts “substantial discretion”

regarding decisions to dismiss for failure to prosecute. Id.

Courts look to four factors for guidance when determining whether dismissal under

Rule 41(b) is appropriate: (1) the willfulness, bad faith, or fault of the plaintiff; (2) whether the

defendant has been prejudiced by the plaintiff’s conduct; (3) whether the plaintiff was warned that

failure to cooperate could lead to dismissal; and (4) the availability and appropriateness of other,

less drastic sanctions. Knoll, 176 F.3d at 363 (citing Stough v. Mayville Cmty. Sch., 138 F.3d 612,

615 (6th Cir. 1998)). Under Sixth Circuit precedent, “none of the factors is outcome dispositive,”

but “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));

see also Muncy v. G.C.R., Inc., 110 F. App’x 552, 555 (6th Cir. 2004) (finding that dismissal with

prejudice “is justifiable in any case in which ‘there is a clear record of delay or contumacious

conduct on the part of the plaintiff’” (quoting Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 591

(6th Cir. 2001))). Because dismissal without prejudice is a relatively lenient sanction as compared

to dismissal with prejudice, the “controlling standards should be greatly relaxed” for Rule 41(b)

dismissals without prejudice where “the dismissed party is ultimately not irrevocably deprived of

his [or her] day in court.” Muncy, 110 F. App’x at 556 (citing Nwokocha v. Perry, 3 F. App’x 319,

321 (6th Cir. 2001)); see also M.D. Tenn. R. 41.01 (dismissal of inactive cases) (allowing Court

to summarily dismiss without prejudice “[c]ivil suits that have been pending for an unreasonable

period of time without any action having been taken by any party”).

III. Analysis

Given Garth’s failure to respond to the Court’s order requiring her to state the status of her

representation, she is presumed to be proceeding pro se. Dismissal of this action is appropriate

under Rule 41(b) because the four relevant factors, considered under the “relaxed” standard for

dismissals without prejudice, show a record of delay by Garth.

A. Bad Faith, Willfulness, or Fault

A plaintiff’s actions demonstrate bad faith, willfulness, or fault where they “display either

an intent to thwart judicial proceedings or a reckless disregard for the effect of [plaintiff’s] conduct

on those proceedings.” Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005) (quoting Mulbah,

261 F.3d at 591)). Garth managed to retain counsel three times and actively pursued this litigation

for more than two years. Her failure to respond to the Court’s show-cause order and Brown’s

motion to control the minor plaintiffs’ claims therefore appears to be a problem of her own making.

Even if these failures were not motivated by bad faith, her inaction still reflects “willfulness and

fault” for purposes of Rule 41(b). Hatcher v. Dennis, No. 1:17-cv-01042, 2018 WL 1586235, at

*1 (W.D. Tenn. Mar. 30, 2018); see id. (explaining that, “[e]ven where there is no clear evidence

of bad faith, failure to respond to a show cause order is indicative of willfulness and fault”); see

also Malott v. Haas, No. 16-13014, 2017 WL 1319839, at *2 (E.D. Mich. Feb. 8, 2017) (finding

that plaintiff was at fault for failing to respond to court’s show-cause orders), report and

recommendation adopted by 2017 WL 1244991 (E.D. Mich. Apr. 5, 2017). This factor supports

dismissal.

B. Prejudice

The Sixth Circuit has held that “[a] defendant is prejudiced by a plaintiff’s dilatory conduct

if the defendant is ‘required to waste time, money, and effort in pursuit of cooperation which [the

plaintiff] was legally obligated to provide.’” Carpenter, 723 F.3d at 707 (second alteration in

original) (quoting Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997)); see also

Schafer, 529 F.3d at 739 (same). Such prejudice typically arises in the discovery context. See, e.g.,

Harmon, 110 F.3d at 368 (finding prejudice where plaintiff failed to respond to defendant’s

interrogatories and a related motion to compel); Wright v. City of Germantown, No. 11-02607,

2013 WL 1729105, at *2 (W.D. Tenn. Apr. 22, 2013) (finding prejudice where defendant

“expended time and money pursuing [plaintiff’s] required initial disclosures and deposition

testimony”). Notably, time and effort spent on “typical steps in the early stages of litigation[,]”

such as answering a complaint or filing pretrial motions to advance the defendant’s position, are

not actions “necessitated by any lack of cooperation” and therefore do not weigh in favor of

dismissal for failure to prosecute. Schafer, 529 F.3d at 739. The Sixth Circuit explained in Schafer

v. City of Defiance Police Department that “[i]f such efforts . . . [were] alone sufficient to establish

prejudice,” for the purpose of Rule 41(b), “then every defendant who answers a complaint and

responds minimally to a lawsuit would be able to claim prejudice[,]” a “result [that] would defy

common sense.” 529 F.3d at 740.

The defendants in this action have not been forced to expend time and resources as a result

of Garth’s failure to prosecute. This factor weighs against dismissal.

C. Prior Notice

Whether a party was warned that failure to cooperate could lead to dismissal “is a ‘key

consideration’” in the Rule 41(b) analysis. Schafer, 529 F.3d at 740 (quoting Stough, 138 F.3d at

615). Here, the Court warned Garth that failure to respond to the show-cause order could lead to

dismissal of her claims. (Doc. No. 102.) This factor supports dismissal. Schafer, 529 F.3d at 740;

see also Wright, 2013 WL 1729105, at *3 (granting motion to dismiss for failure to prosecute

where Court’s orders to show cause warned plaintiff “that her conduct could result in dismissal”).

D. Appropriateness of Other Sanctions

The less-drastic sanction of dismissal without prejudice is available and appropriate here.

Dismissal without prejudice balances the Court’s interest in “sound judicial case and docket

management” with “the public policy interest in the disposition of cases on their merits.” Muncy,

110 F. App’x at 557 n.5; see also Mulbah, 261 F.3d at 590–91. Such a sanction is particularly

appropriate in cases of prolonged inactivity and where, as here, the plaintiff appears pro se. See

Schafer, 529 F.3d at 737 (noting that courts apply the four-factor test “more stringently in cases

where the plaintiff’s attorney’s conduct is responsible for the dismissal” (quoting Harmon, 110

F.3d at 367)).

IV. Recommendation

For the foregoing reasons, the Magistrate Judge RECOMMENDS that Garth’s claims

against the remaining defendants be dismissed without prejudice for failure to prosecute under

Rule 41(b). The Court will address Brown’s motion to determine the right to control the claims of

the minor children (Doc. No. 100) separately.

Any party has fourteen days after being served with this report and recommendation to file

specific written objections. Failure to file specific objections within fourteen days of receipt of this

report and recommendation can constitute a waiver of appeal of the matters decided. Thomas v.

Arn, 474 U.S. 140, 155 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004). A party

who opposes any objections that are filed may file a response within fourteen days after being

served with the objections. Fed. R. Civ. P. 72(b)(2).

Entered this 3rd day of January, 2020.

ALI IR E. NEWBERN

United States Magistrate Judge

11