Malburg

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

GREGORY MALBURG, ) CASE NO. 1:26-CV-00599-DAR

)

Plaintiff, ) JUDGE DAVID A. RUIZ

)

)

v. ) MAGISTRATE JUDGE

) JENNIFER DOWDELL ARMSTRONG

CITY OF CLEVELAND, )

)

) REPORT AND

Defendant. ) RECOMMENDATION

)

I. INTRODUCTION

Plaintiff Gregory Malburg, acting pro se, filed suit against Defendant City of

Cleveland, asserting a federal claim under 42 U.S.C. § 1983, along with state law claims of

conversion and negligence. (ECF No. 1-2). Since filing the complaint, Plaintiff has failed to

comply with multiple court orders—including an order requiring him to file a notice of change

of address and two orders to show cause—despite warnings that his continued failure to

comply with court orders could result in sanctions, including a recommendation that the Court

dismiss the action. Accordingly, and on my own initiative, I recommend that the Court

dismiss Plaintiff’s complaint without prejudice.

II. FACTUAL AND PROCEDURAL BACKGROUND

On February 10, 2026, Plaintiff filed a complaint against the City of Cleveland in the

Cuyahoga County Court of Common Pleas, case number CV 26 132811. (ECF No. 1-2).

Plaintiff alleges that the City of Cleveland unlawfully towed his car and subsequently sold it

as scrap while ignoring Plaintiff’s continuous efforts to locate and recover the vehicle. He

asserts a federal claim under 42 U.S.C. § 1983, alleging that the City of Cleveland’s actions

violated his right to due process under the Fourteenth Amendment to the United States

Constitution. Plaintiff also asserts state law claims for conversion and negligence.

On March 13, 2026, the City of Cleveland removed the action to this court pursuant

to 28 U.S.C. §§ 1441(a) and 1446. (ECF No. 1). On April 1, 2026, the Court referred this

matter to me for general pretrial supervision. (ECF No. 6).

On April 24, 2026, I issued a Case Management Scheduling Order and set a case

management conference for June 8, 2026. (ECF No. 9). On the same date, the City of

Cleveland filed a notice informing the Court that service copies of filings it sent to Plaintiff

at his address of record by certified mail had been returned undelivered and unclaimed. (ECF

No. 8). Accordingly, I entered an order requiring Plaintiff to file a notice of change of address

with the Court by May 15, 2026. (See ECF non-document entry dated April 24, 2026). I also

informed Plaintiff that “failure to file a change of address may result in a recommendation

that this action be dismissed with prejudice for failure to prosecute pursuant to Fed. R. Civ.

P. 41(b).” Id.

Plaintiff did not file a notice of change of address by May 15, 2026. As a result, I

issued an Order to Show Cause on May 19, 2026, ordering plaintiff to file a written notice by

June 2, 2026 explaining why I should not recommend sanctions again him, including, but not

limited to, dismissal of the action with prejudice. (See ECF non-document entry dated May

19, 2026). I also warned Plaintiff that “failure to file a written notice may result in the

recommendation of immediate sanctions, including dismissal of this action with prejudice.”

Id. Plaintiff did not file a response to my show cause order by June 2, 2026, and has not filed

a response to date.

On June 1, 2026, the City of Cleveland filed a Rule 26(f) report, notifying the Court that

Plaintiff had not responded to multiple attempts by the City of Cleveland to contact Plaintiff by

phone and email. (ECF No. 10). On the same day, I issued another Order to Show Cause,

instructing Plaintiff to “file a written notice to show cause on or before 6/8/2026 regarding why

this Court should not recommend sanctions, including but not limited to dismissal of the case

with prejudice, monetary penalties, or any other appropriate sanction, for Plaintiff's failure to

comply with the Court's case management order . . . .” (See ECF non-document entry dated

June 1, 2026).

On June 4, 2026, I canceled the June 8, 2026 case management conference due to

Plaintiff’s failure to comply with the case management order and my May 19, 2026 show cause

order. (See ECF non-document entry dated June 4, 2026).

To date, Plaintiff has not filed a response to my June 1, 2026 show cause order.

Moreover, Plaintiff has made no attempt to provide an explanation for his failure to comply

with court orders. Accordingly, and on my own initiative, I recommend that the Court dismiss

the case without prejudice for failure to prosecute.

III. ANALYSIS

“The Sixth Circuit has held that ‘a district court has three different sources of authority

to dismiss a case for failure to prosecute.’” Wingate v. Wal-Mart Stores, Inc., No. 1:16-CV-

1785, 2017 WL 1251093, at *3 (N.D. Ohio Mar. 14, 2017), report and recommendation

adopted, 2017 WL 1235006 (N.D. Ohio Apr. 4, 2017) (quoting Rogers v. City of Warren, No.

06-3658, 2008 WL 5054337, at *4 (6th Cir. Nov. 26, 2008)). Those three sources are: (1)

Federal Rule of Civil Procedure 16(f)(1)(A), which authorizes dismissal where a party fails

to appear at a scheduling or pretrial conference; (2) Rule 41(b), which “permits the court to

involuntarily dismiss an action if a plaintiff fails to prosecute [his] case or to comply with a

court order”; and (3) the court’s inherent authority to “‘protect [] the due and orderly

administration of justice, and . . . maintain[] the authority and dignity of the court.’” Id.

(quoting Bowles v. City of Cleveland, 129 F. App’x 239, 241 (6th Cir. 2005) (unpub.)).

The Supreme Court has recognized that “[t]he power to invoke this sanction is

necessary in order to prevent undue delays in the disposition of pending cases and to avoid

congestion in the calendars of the District Courts.” Link v. Wabash R.R. Co., 370 U.S. 626,

629-30 (1962). Notably, 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). Moreover, while “[p]ro se plaintiffs are held to less stringent standards than

attorneys . . . cases filed by pro se plaintiffs may still be subject to dismissal if the plaintiff

fails to meet court orders.” Wingate, 2017 WL 1251093, at *4.

In determining whether dismissal for failure to prosecute is appropriate, courts in this

circuit apply a four-factor test drawn from the Sixth Circuit’s decision in Mulbah v. Detroit

Board of Education, 261 F.3d 586 (6th Cir. 2001):

(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 589; see also Rogers, 302 F. App'x at 376 (applying Mulbah factors). The Mulbah

factors “balance the competing concerns of ‘the court's need to manage its docket, the public's

interest in expeditious resolution of litigation, and the risk of prejudice to a defendant because

the plaintiff has failed to actively pursue its claims’ with the preference for disposition of

cases on their merits.” Wingate, 2017 WL 1251093, at *4 (quoting Little v. Yeutter, 984 F.2d

160, 162 (6th Cir. 1993)).

A. Whether Plaintiff’s failure is due to willfulness, bad faith, or fault

The first factor considers whether Plaintiff’s failures are the result of willfulness, bad

faith, or fault. This factor is satisfied where a plaintiff “display[s] either an intent to thwart

judicial proceedings or a reckless disregard for the effect of [his] conduct on those

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

Plaintiff has failed to file a change of address, to meet and confer with the City of

Cleveland regarding the Rule 26(f) Report, and to file a response to two separate show cause

orders, despite explicit warnings that failure to comply with those court orders could result in

sanctions, including dismissal with prejudice. I find that Plaintiff’s repeated failure to comply

with Court orders is “more than sufficient to display either an intent to thwart judicial

proceedings or a reckless disregard for the effect of [his] conduct on those proceedings.”

Wingate, 2017 WL 1251093, at *5 (quotations omitted); see also Napier v. Bobby, No.

4:13CV2433, 2015 WL 13730925, at *2 (N.D. Ohio Dec. 31, 2015), report and

recommendation adopted, 2016 WL 1578583 (N.D. Ohio Apr. 20, 2016) (holding that first

factor weighed in favor of dismissal where plaintiff failed to attend his own deposition despite

being fully aware that deposition was taking place). The first factor thus weighs in favor of

dismissal.

B. Whether the City of Cleveland was prejudiced by Plaintiff’s conduct

The second factor is whether Plaintiff’s actions prejudiced the City of Cleveland. This

factor also favors dismissal because the City of Cleveland and its counsel have incurred time

and expense in filing an Answer and preparing for the case management conference. In

addition, the City of Cleveland alleges it made numerous attempts with Plaintiff to schedule

a “meet and confer” in advance of the case management conference and received no response.

(ECF No. 10). The City of Cleveland then filed its own Rule 26(f) Report in an attempt to

comply with the Case Management Conference Scheduling Order. Id. Accordingly, the

second factor weighs in favor of dismissal. See Wingate, 2017 WL 1251093, at *5 (holding

that defendant was prejudiced where defense counsel expended time, money, and effort to

prepare for and attend multiple court proceedings at which plaintiff did not appear).

C. Whether Plaintiff was warned that failure to cooperate could lead to

dismissal

The third factor is whether Plaintiff was warned that failure to comply with court

orders could lead to dismissal. This factor is unquestionably satisfied here, as my April 24,

2026 notice of change of address order and my May 19, 2026 and June 1, 2026 show cause

orders expressly warned Plaintiff that failure to comply may result in sanctions, including

dismissal with prejudice.

D. Whether less drastic sanctions were imposed or considered before

dismissal was ordered

The fourth and final factor looks to whether less drastic sanctions were imposed or

considered. Courts have recognized that “the sanction of dismissal is appropriate only if the

attorney’s [or party’s] actions amounted to failure to prosecute and no alternative sanction

would protect the integrity of the pretrial process.” Wingate, 2017 WL 1251093, at *4

(quoting United States v. $506,069.09 Seized from First Merit Bank, 664 F. App’x 422, 430

(6th Cir. 2016)).

I have considered lesser sanctions but conclude that no sanction short of dismissal

would protect the integrity of the pretrial process. I have warned Plaintiff on three occasions

that failure to comply with court orders could result in sanctions, including dismissal with

prejudice. But Plaintiff has made no effort to explain his non-compliance with these court

orders. Under the circumstances, there is no reason to believe that a lesser sanction would

secure Plaintiff’s compliance with court orders. See Wingate, 2017 WL 1251093, at *6

(holding that less drastic sanctions than dismissal were “unlikely to elicit a response” where

plaintiff “failed, again and again, to appear for Court proceedings when ordered to do so”

despite prior warnings that sanctions may be imposed); Glasgow v. Gen. Elec. Co./GE

Renewable Energy, No. 3:23-CV-1702-JRK, 2024 WL 2924930, at *3 (N.D. Ohio May 20,

2024), report and recommendation adopted, 2024 WL 2899180 (N.D. Ohio June 10, 2024)

(holding that plaintiff’s conduct “supports no other conclusion than that he has abandoned his

case” where plaintiff failed to appear for successive status conferences and failed to engage

with defense counsel).

After careful consideration, however, I conclude that the dismissal should be without

prejudice rather than with prejudice. “[D]ismissal with prejudice is the most powerful

sanction available” for failure to prosecute. Napier, 2015 WL 13730925, at *3. “[C]ourts

within this Circuit have noted that a district court should not dismiss with prejudice in cases

in which an alternative sanction would better serve the interests of justice.” Wingate, 2017

WL 1251093, at *6 (recommending dismissal without prejudice rather than with prejudice).

Here, the alternative sanction of dismissal without prejudice, rather than with prejudice,

would best serve the interests of justice, particularly as Plaintiff is proceeding pro se.

IV. CONCLUSION

For the foregoing reasons, I recommend that the Court dismiss this action without

prejudice as a sanction for Plaintiff’s failure to prosecute and comply with Court orders.

Dated: June 23, 2026 s/ Jennifer Dowdell Armstrong

United States Magistrate Judge

V. NOTICE TO PARTIES REGARDING OBJECTIONS

Local Rule 72.3(b) of this Court provides:

Any party may object to a Magistrate Judge’s proposed findings,

recommendations or report made pursuant to Fed. R. Civ. P. 72(b) within

fourteen (14) days after being served with a copy thereof, and failure to

file timely objections within the fourteen (14) day period shall constitute a

waiver of subsequent review, absent a showing of good cause for such

failure. Such party shall file with the Clerk of Court, and serve on the

Magistrate Judge and all parties, written objections which shall specifically

identify the portions of the proposed findings, recommendations, or report to

which objection is made and the basis for such objections. Any party may

respond to another party’s objections within fourteen (14) days after being

served with a copy thereof. The District Judge to whom the case was assigned

shall make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made and may

accept, reject, or modify, in whole or in part, the findings or recommendations

made by the Magistrate Judge. The District Judge need conduct a new hearing

only in such District Judge’s discretion or where required by law, and may

consider the record developed before the Magistrate Judge, making a

determination on the basis of the record. The District Judge may also receive

further evidence, recall witnesses or recommit the matter to the Magistrate

Judge with instructions.

Id. (emphasis added).

Failure to file objections within the specified time may result in the forfeiture or

waiver of the right to raise the issue on appeal either to the district judge or in a subsequent

appeal to the United States Court of Appeals, depending on how or whether the party responds

to the report and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019).

Objections must be specific and not merely indicate a general objection to the entirety of the

report and recommendation; a general objection has the same effect as would a failure to

object. Howard v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).

Stated differently, objections should focus on specific concerns and not merely restate

the arguments in briefs submitted to the magistrate judge. “A reexamination of the exact same

argument that was presented to the Magistrate Judge without specific objections ‘wastes

judicial resources rather than saving them, and runs contrary to the purpose of the Magistrates

Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, *2 (W.D. Ky. June 15,

2018) (quoting Howard). The failure to assert specific objections may in rare cases be

excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79

(6th Cir. 2019).