Klimo

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT M. KLIMO, ) CASE No. 1:26-CV-293

) 1:26-CV-294

Plaintiff, )

)

v. ) JUDGE DONALD C. NUGENT

)

U.S. BANK NATIONAL TRUST ) MAGISTRATE JUDGE

ASSOCIATION, et al., ) JENNIFER DOWDELL ARMSTRONG

)

Defendants. ) REPORT AND RECOMMENDATION

I. INTRODUCTION AND PROCEDURAL HISTORY

Plaintiff Robert M. Klimo (“Plaintiff”), proceeding pro se, filed a 26-count, 266-page

complaint against 11 defendants in this case. Seven Defendants subsequently filed Motions to

Dismiss, which remain pending before the Court. (No. 26-cv-293, ECF Nos. 3, 11, 14, 23; No. 26-

cv-294, ECF Nos. 16, 19, 20).

On April 16, 2026, I ordered Plaintiff to show cause for his failure to file timely responses

or seek an extension to respond to three of Defendants’ Motions to Dismiss: (1) Defendants Planet

Home Lending LLC and U.S. Bank Trust National Association’s motion filed on February 12,

2026 in No. 1:26-cv-293 (ECF No. 17); (2) Defendants Chicago Title Insurance

Company/Servicelink’s motion of February 27, 2026 in No. 1:26-cv-293 (ECF No. 11); and (3)

Defendant Internal Revenue Service’s motion filed on March 11, 2026 in Case No. 1:26-cv-294

(ECF No. 16). (“First Show Cause Order,” ECF No. 17 in the lead case.)

The First Show Cause Order provided Plaintiff until April 30, 2026 to Show Cause for his

failure to file timely opposition briefs to the Motions to Dismiss or to seek an extension of time to

do so. (Id., PageID# 554–55.) The First Show Cause Order warned Plaintiff that he is “hereby on

notice that failure to comply with this Show Cause Order may result in a recommendation

to dismiss this action for want of prosecution pursuant to Fed. R. Civ. P. 41(b) without

further notice.” (Id., emphasis in original.) Plaintiff failed to respond to the First Show Cause

Order by April 30, 2026.

On April 24, 2026, I ordered Plaintiff to show cause for his failure to file an opposition

brief or seek an extension to respond to Defendant Huntington National Bank’s Motion to Dismiss

(ECF No. 19), which was filed in No. 26-cv-294 on March 24, 2026. (“Second Show Cause Order,”

ECF No. 21 in the lead case.)

The Second Show Cause Order provided Plaintiff until May 8, 2026 to show cause for his

failure to file timely opposition briefs to the Motion to Dismiss or to seek an extension of time to

do so. (Id., PageID# 569.) The Second Show Cause Order warned Plaintiff that he is “hereby on

notice that failure to comply with this Show Cause Order may result in a recommendation

to dismiss this action for want of prosecution pursuant to Fed. R. Civ. P. 41(b) without

further notice.” (Id., emphasis in original.)

On June 2, 2026, I issued a third order (“Third Show Cause Order,” non-document), which

again informed Plaintiff of his “failure to file timely opposition briefs to the multiple Motions to

Dismiss filed in this case by Defendants Planet Home Lending LLC and U.S. Bank Trust National

Association in Case 1:26-CV-293 (ECF No. 3 ), Defendants Chicago Title Insurance Company in

Case No. 26-cv-293 (ECF No. 11 ), Defendant Internal Revenue Service in Case No. 1:26-cv-294

(ECF No. 16 ), and Huntington National Bank in Case No. 26-cv-293 (ECF No. 14 ) and in Case

No. 26-cv-294 (EF No. 19 ), as well as to seek an extension of time to respond to these Motions.”

The Third Show Cause Order further stated that Plaintiff failed to respond to the First Show Cause

Order and the Second Show Cause Order. (Id.) And the Third Show Cause Order informed Plaintiff

that he failed to respond to a fifth Defendant’s Motion to Dismiss (Franklin Credit Management

Corporation), which was filed on April 16, 2026. (Id.) Finally, the Third Show Cause Order warned

Plaintiff that is hereby on notice that failure to respond to the fifth Motion to Dismiss, the First

Order Cause Order, the Second Show Cause Order, and the Third Show Cause Order on or before

June 12, 2026, “will result in a recommendation to dismiss Case Nos. 26-cv-293 and 26-cv-

294 with prejudice for want of prosecution pursuant to Fed. R. Civ. P. 41(b) without further

notice.” (Emphasis added).

Plaintiff did not respond to these various orders in any way by June 12, 2026.

Instead, on June 15, 2026, Plaintiff filed an untimely motion captioned “Emergency Motion

for Leave to File Out-of-Time Oppositions Nunc Pro Tunc, for Extension of Time Under Fed. R.

Civ. P. 6(B)(1)(B), and Combined Response to Orders to Show Cause.” (The “Emergency

Motion,” No. 26-CV-293, ECF No. 24.)1 The Emergency Motion was filed three months after

Plaintiff’s deadline to respond to certain Defendants’ Motions to Dismiss, two months after the

First Show Cause Order, over a month after the Second Show Cause Order, and three days after

the deadline set in the Third Show Cause Order. Plaintiff’s Emergency Motion asked the Court to

excuse not only his original missed deadlines to oppose numerous Defendants’ Motions to

Dismiss, but also his failure to comply with the First Show Cause Order, the Second Show Cause

Order, and the Third Show Cause Order.

1 While Plaintiff’s Emergency Motion was dated June 10, 2026, it was not filed until June 15, 2026. (Compare

ECF NO. 24, Page# 602 with PageID# 591.)

While several Defendants opposed Plaintiff’s request to one extent or another (see ECF

Nos. 25, 26, 27, 28, 29), and despite the untimeliness just described, I granted Plaintiff’s

Emergency Motion on July 8, 2026 in order to provide Plaintiff with a final opportunity to comply

with court orders in this case. (Non-document order dated July 8, 2026, No. 26-CV-293, “Final

Order.”) Specifically, the Final Order ordered Plaintiff to “file responses to all Defendants’

pending motions to dismiss on or before July 16, 2026.” (Id.) The Final Order warned Plaintiff

that “[n]o extensions will be granted.” (Id.) And the Final Order put Plaintiff on notice that “if he

fails to file his responses on or before July 16, 2026, that I will recommend without further

notice that the Court dismiss Case Nos. 26-cv-293 and 26-cv-294 with prejudice for failure

to comply with numerous court orders and for want of prosecution pursuant to Fed. R. Civ.

P. 41(b).” (Id.) (emphasis added).

Despite this final warning, Plaintiff filed nothing between my Final Order and my clearly

stated final deadline.

On July 29, 2026, Plaintiff filed untimely opposition briefs in Case No. 26-cv-293 to

Defendant Huntington’s Motion to Dismiss (Opp’n, ECF No. 31), Defendant U.S. Bank Trust

National Association and Planet Home Lending’s Motion to Dismiss (Opp’n, ECF No. 32), and

Defendant Chicago Title Insurance Company’s Motion to Dismiss (Opp’n, ECF No. 33). On the

same day, Plaintiff also filed an untimely opposition brief in No. 26-cv-294 to Franklin Credit

Management’s Motion to Dismiss (ECF No. 25 in the member case) (collectively, Plaintiff’s

“Untimely Opposition Briefs”).2

Plaintiff did not seek an extension of time to file his Untimely Opposition Briefs and

provides no explanation for his failure to comply with the Final Order, despite the fact that the

2 On the same day, Plaintiff filed a “Notice of Voluntary Dismissal Without Prejudice as to United States Internal

Revenue Service Only.” (ECF No. 30 in the lead case.)

Final Order explicitly warned Plaintiff that I would recommend that the Court dismiss Plaintiff’s

claims with prejudice if he failed to file his responses to Defendants’ Motions to Dismiss on or

before July 16, 2024. Notably, each of the Untimely Opposition Briefs are dated after the deadline.

(See in the lead case, ECF No. 31, PageID# 664; ECF No. 32, PageID# 685; ECF No. 33,

PageID# 701; in the member case, ECF No. 25, PageID# 409.)

Plaintiff has failed to timely comply with the First Motion to Show Cause, the Second

Motion to Show Cause, the Third Motion to Show Cause, and the Final Order. Accordingly, and

on my own initiative, I recommend that the Court DISMISS Mr. Klimo’s case without prejudice

for failure to prosecute pursuant to Fed. R. Civ. P. 41 and for failure to comply with Court orders.

If the Court accepts my recommendation that Plaintiff’s claims be dismissed without

prejudice, I also recommend that the Court deny as moot Defendants’ numerous pending Motions

to Dismiss. (Case No. 26-cv-293, ECF Nos. 3, 11, 14, 23; Case No. 26-cv-294, ECF Nos. 16, 19,

20).

II. ANALYSIS

Plaintiff’s Complaint against all Defendants should be dismissed for failure to prosecute

and to timely comply with the First Show Cause Order, the Second Show Cause Order, the Third

Show Cause Order, and the Final Order. “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) (quoting

Rogers v. City of Warren, 302 F. App’x 371, 375 (6th Cir. 2008)), report and recommendation

adopted, 2017 WL 1235006 (N.D. Ohio Apr. 4, 2017). Those three sources are: (1) Federal Rule

of Civil Procedure 16(f)(1)(A), which authorizes dismissal where 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 [her] 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 v. City of Warren, 302 F. App’x 371, 376 (6th Cir. 2008) (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 failure to timely respond to or comply with

the First Order to Show Cause, Second Order to Show Cause, Third Order to Show Cause, and

Final Order is due to willfulness, bad faith, or fault.

Here, there is no indication that bad faith motivated Plaintiff’s failure to timely respond or

comply with the First Show Cause Order, Second Show Cause Order, Third Order to Show Cause,

or the Final Order. See Cozart v. Dawson, No. 3:23-cv-0031, 2023 WL 6392738, at *2 (M.D.

Tenn. Sept, 29, 2023).

But I warned Plaintiff in the First Show Cause Order, Second Show Cause Order, and Third

Show Cause Order that failure to timely respond “will result in a recommendation to dismiss

Case Nos. 26-cv-293 and 26-cv-294 with prejudice for want of prosecution pursuant to Fed.

R. Civ. P. 41(b) without further notice” (emphasis in the original). (ECF Nos. 17, 21, and non-

document order dated June 2, 2026.) And I explicitly warned Plaintiff in the Final Order that “if

he fails to file his responses on or before July 16, 2026, that I will recommend without further

notice that the Court dismiss Case Nos. 26-cv-293 and 26-cv-294 with prejudice for failure

to comply with numerous court orders and for want of prosecution pursuant to Fed. R. Civ.

P. 41(b).” (Non-document order dated July 8, 2026) (emphasis added).

Plaintiff’s failures to timely comply with any of these orders are “indicative of willfulness

or fault for purposes of Rule 41(b) and therefore ‘tip the scale in favor of dismissal on the first

factor.” Cozart, 2023 WL 6392738, at *2 (finding first factor of Rule 41(b) analysis weighed in

favor of dismissal because “the Court warned [Plaintiff] that failure to respond to [Defendant’s]

motion [to dismiss] and failure to respond to the Court’s show-cause orders could result in

dismissal); see also Steward v. City of Jackson, 8 Fed. App’x 294, 296 (6th Cir. 2001) (affirming

Rule 41(b) dismissal when the pro se plaintiff failed to comply with the district court’s order to

either proceed in forma pauperis or pay the filing fee within 20 days, and the court’s order

specifically stated that failure to comply with the order would result in dismissal); Jourdan v. Jabe,

951 F.2d 108, 110 (6th Cir. 1991) (Rule 41(b) dismissal appropriate for a pro se plaintiff’s failure

to comply with a readily comprehended court deadline); Daniels v. Napoleon, No. 14-10609, 2014

WL 6669116, at *3 (E.D. Mich. Nov. 24, 2014) (finding first factor weighed in favor of dismissal

where court warned pro se plaintiff “that his case would be dismissed with prejudice if he failed

to file a response to Defendants’ motion to dismiss or a response to the Court’s Order to Show

Cause.”)

Accordingly, the first factor favors dismissal.

B. Prejudice

The second factor is whether Plaintiff’s actions prejudiced Defendants. Numerous

Defendants in this case “assembled, researched, and filed a motion to dismiss on the assumption

that [Plaintiff] intend to prosecute his case against [them].” Hatcher v. Dennis, No. 1:17-cv-01042-

JDB-egb, 2018 WL 1586235, at *2 (W.D. Tenn. March 30, 2018) (holding second factor weighed

in favor of dismissal when the plaintiff failed to respond to the defendant’s motion to dismiss and

the Court’s show cause order directing the plaintiff to show cause within 11 days why his

complaint should not be dismissed for failure to prosecute under Fed. R. Civ. P. 41); see also

Crawford v. Beaumont Hosp., Case No. 16-cv-11461, 2017 WL 744242, at *7 (E.D. Mich. Feb.

27, 2017) (internal citation omitted) (“[A]bandoning claims, which can occur when a litigant does

not respond to a motion, causes prejudice to the opposing party in the context of a Rule 41(b)

dismissal.”)

Here, Plaintiff failed to timely comply with the First Show Cause Order, the Second Show

Cause Order, the Third Show Cause Order, and the Final Order. Accordingly, the second factor

weighs in favor of dismissal.

C. Whether Plaintiff was warned that failure to timely respond to Court

orders could lead to dismissal of his claims

The third factor is whether Plaintiff was warned that failure to comply with the First Show

Cause Order, the Second Show Cause Order, the Third Show Cause Order, and the Final Order

could result in dismissal. This factor is unquestionably satisfied here because the First Show Cause

Order, the Second Show Cause Order, and the Third Show Cause Order informed Plaintiff that he

is “hereby on notice that failure to comply with this Show Cause Order may result in a

recommendation to dismiss this action for want of prosecution pursuant to Fed. R. Civ. P. 41(b)

without further notice.” (ECF Nos. 17, 21, and non-document order dated June 2, 2026, emphasis

omitted.) And the Final Order advised Plaintiff that “if he fails to file his responses [to the Motions

to Dismiss] on or before July 16, 2026, that I will recommend without further notice that the Court

dismiss Case Nos. 26-cv-293 and 26-cv-294 with prejudice for failure to comply with numerous

court orders and for want of prosecution pursuant to Fed. R. Civ. P. 41(b).” (Non-document order

dated July 8, 2026, emphasis added). I further advised Plaintiff that no extensions would be

granted. (Id.)

Accordingly, this factor favors dismissal because Plaintiff did not timely comply with the

First Show Cause Order, the Second Show Cause Order, the Third Show Cause Order, or the Final

Order.

D. Whether less drastic sanctions were imposed or considered

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 (N.D. Ohio Mar.

14, 2017) (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. The First Show Cause Order, the Second Show Cause

Order, the Third Show Cause Order, and the Final Order warned Plaintiff that failure to comply

with these Court orders could result in a recommendation of dismissal. And it is undisputed that

Plaintiff failed to timely comply with these 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).

After careful consideration, however, I conclude that “the less-drastic sanction of dismissal

without prejudice is available and appropriate here even though [defendant] has filed a motion to

dismiss.” Cozart, 2023 WL 6392738, at *4; see also Daniels, 2014 WL 6669116, at *1 (dismissing

pro se plaintiff’s complaint without prejudice for failure to prosecute and denying defendants’

motion to dismiss as moot.). “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.’” Cozart, 2023 WL 6392738, at *4 (citing Muncy v. G.C.R., Inc., 110 Fed. App’x

at 557 n.5 (6th Cir. 2004)); see also Mulbah, 261 F.3d at 590-91 (recognizing strong countervailing

public policy interest in “the court’s needs to management of its docket” and “in expeditious

resolution of litigation” even where the dismissal was with prejudice). “Such a sanction [of

dismissal without prejudice] is particularly appropriate in cases of prolonged inactivity and where,

as here, the plaintiff appears pro se.” Id.

Accordingly, I determine that a dismissal of Plaintiff’s claims without prejudice, rather

than with prejudice, would best serve the interests of justice.

III. CONCLUSION

For the foregoing reasons, I recommend that the Court dismiss Plaintiff’s Complaint

without prejudice for Plaintiff’s failure to prosecute and comply with court orders. And if the Court

accepts my recommendation that Plaintiff’s claims be dismissed without prejudice, I also

recommend that the Court deny as moot Defendants’ numerous pending Motions to Dismiss. (Case

No. 26-cv-293, ECF Nos. 3, 11, 14, 23; Case No. 26-cv-294, ECF Nos. 16, 19, 20).

Dated: August 3, 2026 /s/ Jennifer Dowdell Armstrong

United States Magistrate Judge

IV. 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).