The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
BARBARA LOVRETA, )
)
Plaintiff, )
)
v. ) Case No. 2:19-cv-02469-JTF-jay
)
DELTA GLOBAL SERVICES, )
)
Defendant. )
ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING
PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE
Before the Court is the Magistrate Judge’s Report and Recommendation to dismiss this
case without prejudice. (ECF No. 16.) Neither party has filed objections to the Report and
Recommendation. As explained below, the Court ADOPTS the Magistrate Judge’s Report and
Recommendation. Plaintiff’s Complaint is DISMISSED without prejudice.
FINDINGS OF FACT
Plaintiff filed her pro se Complaint in this matter on July 22, 2019, asserting claims under
Title VII, the Age Discrimination in Employment Act (“ADEA”), and Americans with Disabilities
Act (“ADA”). (ECF No. 1.) On the same day, Plaintiff filed her Motion for Leave to Proceed In
Forma Pauperis. (ECF No. 2.) Magistrate Judge Jon A. York granted Plaintiff’s Motion for Leave
to Proceed In Forma Pauperis on August 13, 2019. (ECF No. 7.) On November 5, 2019, the
Magistrate Judge issued a Report and Recommendation screening Plaintiff’s Complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B). (ECF No. 9.) Therein, the Magistrate Judge recommended dismissal
of all of Plaintiff’s claims with the exception of Plaintiff’s failure to accommodate claim under the
ADA. (Id.) On January 8, 2020, this Court entered an Order Adopting Magistrate Judge’s Report
and Recommendation and Partially Dismissing Case. (ECF No. 11.) Pursuant to that Order, all
of Plaintiff’s claims were dismissed except for Plaintiff’s failure to accommodate claim under the
ADA.
On December 1, 2020, the Magistrate Judge entered an Order Directing Clerk to Issue
Summons. (ECF No. 12.) Pursuant to Federal Rule of Civil Procedure 4(c)(3), a United States
Marshal served Defendant via certified mail on December 16, 2020. (ECF No. 14.) To date,
Defendant has not responded to Plaintiff’s Complaint or defended against it. On February 22,
2021, the Magistrate Judge entered an Order to Show Cause, ordering Plaintiff to explain why this
case should not be dismissed given Plaintiff’s failure to prosecute this matter or seek an entry of
default against Defendant. (ECF No. 15.) The Order to Show Cause gave Plaintiff until March
19, 2021 to comply with the Order. (Id. at 2.) Plaintiff did not respond to the Order to Show
Cause. On March 26, 2021, the Magistrate Judge issued a second Report and Recommendation,
recommending that this case be dismissed without prejudice due to Plaintiff’s failure to respond
to the show cause order. (ECF No. 16.) Plaintiff failed to file objections to the second Report and
Recommendation, and the time for doing so has passed. See LR 72.1(g)(2).
LEGAL STANDARD
Congress passed 28 U.S.C. § 636(b) “to relieve some of the burden on the federal courts
by permitting the assignment of certain district court duties to magistrates.” United States v.
Curtis, 237 F.3d 598, 602 (6th Cir. 2001). Pursuant to the provision, magistrate judges may hear
and determine any pretrial matter pending before the Court, except various dispositive motions.
28 U.S.C. § 636(b)(1)(A). Regarding those excepted dispositive motions, magistrate judges may
still hear and submit to the district court proposed findings of fact and recommendations for
disposition. 28 U.S.C. § 636(b)(1)(B). Upon hearing a pending matter, “the magistrate judge must
enter a recommended disposition, including, if appropriate, proposed findings of fact.” Fed. R.
Civ. P. 72(b)(1); see also Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003). Any party who
disagrees with a magistrate’s proposed findings and recommendation may file written objections
to the report and recommendation. Fed. R. Civ. P. 72(b)(2).
The standard of review that is applied by the district court depends on the nature of the
matter considered by the magistrate judge. See Baker, 67 F. App’x at 310 (citations omitted.)
Upon review, the district court may accept, reject, or modify the proposed findings or
recommendations of the magistrate judge. Brown v. Bd. of Educ., 47 F. Supp. 3d 665, 674 (W.D.
Tenn. 2014); see also 28 U.S.C. § 636(b)(1). The court “may also receive evidence or recommit
the matter to the [m]agistrate [j]udge with instructions.” Moses v. Gardner, No. 2:14-cv-2706-
SHL-dkv, 2015 U.S. Dist. LEXIS 29701, at *3 (W.D. Tenn. Mar. 11, 2015).
Usually, the district court must review dispositive motions under the de novo standard.
However, a district court is not required to review “a magistrate’s factual or legal conclusions,
under a de novo or any other standard, when neither party objects to those findings.” Thomas v.
Arn, 474 U.S. 140, 150 (1985). A district judge should adopt the findings and rulings of the
magistrate judge to which no specific objection is filed. Brown, 47 F. Supp. 3d at 674.
ANALYSIS
The Court has reviewed the docket in this case and—while not obligated to do so—has
conducted a de novo review of the Magistrate Judge’s Report and Recommendation. “It is well
settled that a district court has the authority to dismiss sua sponte a lawsuit for failure to prosecute.”
Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (citations omitted). In the Sixth
Circuit, four factors are considered in assessing whether dismissal of a case is appropriate in light
of a failure to comply with a court order:
(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. at 704 (quoting Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 589 (6th Cir. 2001)). “Although
no one factor is dispositive, dismissal is proper if the record demonstrates delay or contumacious
conduct.” Mager v. Wis. Cent., Ltd., 924 F.3d 831, 837 (6th Cir. 2019) (quoting United States v.
Reyes, 307 F.3d 451, 458 (6th Cir. 2002)).
Analyzing this case under the above factors, it appears to the Court that Plaintiff has
exhibited bad faith by failing to advance this case and comply with the Magistrate Judge’s Order
to Show Cause. Moreover, a significant amount of time has passed without any action or
compliance by Plaintiff. In fact, Plaintiff’s deadline to respond to the Order to Show Cause was
five months ago. While it is not clear that Defendant has been prejudiced by Plaintiff’s conduct,
it is obvious that Plaintiff has been warned that failure to comply with the Order to Show Cause
could result in dismissal. The Order to Show Cause provided: “Plaintiff is hereby warned that
failure to timely comply with this order may result in the dismissal of this case.” (ECF No. 15, 2.)
While less drastic sanctions have not previously been imposed in this case, the Court elects now
to dismiss this case without prejudice rather than with prejudice. See Carpenter, 723 F.3d at 709
(alteration in original) (“Alternative sanctions may include ‘levying a fine, barring [counsel] from
participating in oral argument, or any other disciplinary action,’ even dismissal without prejudice.”
(quoting Mulbah, 261 F.3d at 593)). Overall, these factors weigh in favor of dismissal.
Accordingly, the Court believes that dismissal is the most appropriate outcome given the absence
of Plaintiff’s response to the show cause order or objections to the Report and Recommendation.
Cf. Bartley v. Jenny Stewart Med. Ctr., No. 5:19-cv-00005-TBR, 2021 U.S. Dist. LEXIS 11210,
at *5–6 (W.D. Ky. Jan. 21, 2021) (dismissing a pro se plaintiff’s case for failure to prosecute and
failure to comply with a court order). The Court ADOPTS the Magistrate Judge’s Report and
Recommendation. The remaining claim in Plaintiff’s Complaint—failure to accommodate under
the ADA—is DISMISSED without prejudice.
CONCLUSION
Upon de novo review, the Court hereby ADOPTS the Magistrate Judge’s Report and
Recommendation (ECF No. 16). Plaintiff’s Complaint is DISMISSED without prejudice.
IT IS SO ORDERED this 23rd day of August, 2021.
s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE