ANTHONY P. PATTI, Magistrate Judge.
The Court should dismiss this matter with prejudice in accordance with Fed. R. Civ. P. 41(b) for Plaintiffs' failure to prosecute and, in so doing, deem moot Defendants' motions to dismiss (DEs 41, 46).
Plaintiffs Melvin Jones, Jr. and Colleen Conners are the former owners of a condominium at the Parc Lafayette Condominium complex in Detroit. During the time they owned the condominium, and continuing thereafter, Plaintiffs asserted a series of complaints with the Department of Housing and Urban Development (HUD), alleging a variety of concerns, including claims of discrimination and retaliation under the Fair Housing Act (FHA). On June 19, 2018, Plaintiffs filed the instant lawsuit against their condominium association, its attorneys, the President of the Association's Board of Directors, employees of the Association's professional management company, and the Michigan Department of Civil Rights (MDCR). (DE 1.) Although Plaintiffs' complaint, consisting of four pages of narrative and 83 pages of exhibits with hand-written notes on some pages, is less than clear, it appears that they are trying to allege claims of violation of the Fair Housing Act, civil conspiracy, and breach of conciliation agreements under the FHA. (Id.) On August 22, 2018, this matter was referred to me for all pretrial proceedings. (DE 55.)
On August 27, 2018, the Court issued a Notice to Appear for a scheduling/status conference in my courtroom on September 11, 2018, at 10:00 a.m. (DE 65.) The Court also entered two Orders that day: (1) an Order staying the case pending the September 11, 2018 scheduling and status conference (DE 67); and (2) an Order denying Plaintiff Jones's emergency motion to change venue to Flint and request for telephonic hearing appearance, because this case was assigned in accordance with the local rules of this Court, and because Plaintiffs initiated this action and selected the federal court and "should have expected to appear in Court at various times during this litigation, including hearings, pretrial and settlement conferences, and, ultimately, for trial." (DE 66.) The Court noted that, as of that date, Plaintiffs had filed over 35 documents, with the majority labeled as an "errata," "supplement" or "objection," but also including several "requests for judicial notice," and that, in "[b]alancing the `competing interests' of the parties, and the interest of the Court in controlling its docket," a stay was warranted. (DE 67.) The Court ordered that
Over the following nine days, Plaintiffs filed over 25 additional documents, mostly labeled as "appeals" or "interlocutory appeals" of or objections to the Court's Orders, or "certificates of service," but also including a document labeled an "amended complaint" as well as numerous documents titled "errata," which were filed in direct violation of the Order staying this case pending the September 11th scheduling and status conference. (DEs 68-95.)
Accordingly, on September 5, 2018, the Court entered two additional Orders: (1) an Order requiring Plaintiffs to appear at the September 11, 2018 scheduling and status conference (DE 96); and (2) an Order directing the clerk to strike certain filings by Plaintiffs (DEs 83-86, 89-90, 92-95) as filed in direct violation of the Court's stay order, and warning that
Plaintiffs immediately filed objections to both of the Court's September 5th Orders, as well as three "Notices of Interlocutory Appeal" regarding those Orders. (DEs 98-102.) In Plaintiffs' objections (which were signed only by Jones but purported to be asserted on behalf of both Plaintiffs), they stated that Plaintiffs "
On September 6, 2018, Judge Battani entered an order denying all of Plaintiffs' objections to my Orders (DEs 87, 88, 98 99), finding that the Undersigned was "well within his authority under the Federal Rules of Civil Procedure to order parties to appear in person[,]" and agreeing with the stay entered in this matter. (DE 103.) Judge Battani noted that "both Jones and Conners have indicated that they will not be present in person at any hearing in Detroit," (citing DEs 87 at 3, 88 at 4), but that "[n]evertheless, they have been ordered to appear and warned of the consequences of their failure to do so." (DE 103.)
On September 11, 2018, Ron Robinson, Kay R. Butler, and Jonathan Koch, attorneys for the defendants, appeared in my courtroom and, after waiting for 35 minutes for Plaintiffs to appear, the Court held the status conference. The Court confirmed that neither Plaintiff was in the courtroom, and that neither Plaintiff had contacted my deputy clerk to indicate that they were running late or otherwise intended to appear. Accordingly, the Court stated that it would be entering a report and recommendation to dismiss this case pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute.
Federal Rule of Civil Procedure 41(b) and Local Rule 41.2 authorize involuntary dismissal for failure to prosecute or to comply with Federal Rules of Civil Procedure or court orders. Fed. R. Civ. P. 41(b); E.D. Mich. LR 41.2.
The United States Court of Appeals for the Sixth Circuit directs district courts to consider the following factors in deciding whether to dismiss under Rule 41(b):
Schafer v. City of Defiance Police Dept., 529 F.3d 731, 737 (6th Cir. 2008) (internal citations omitted). Although none of the factors is `"outcome dispositive, . . . a case is properly dismissed by the district court where there is a clear record of delay or contumacious conduct.'" Schafer, 529 F.3d at 737 (quoting Knoll, 176 F.3d at 363).
Consideration of these factors weighs in favor of dismissal in this case.
"To support a finding that a plaintiff's actions were motivated by willfulness, bad faith, or fault under the first factor, the plaintiff's conduct `must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of his conduct on those proceedings.'" Schafer, 529 F.3d at 737 (quoting Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005)). As explained above, Plaintiffs were ordered
Despite the Court's explicit orders, Plaintiffs did not appear at the September 11th scheduling/status conference. The Court has every reason to believe that Plaintiff's "failure is due to willfulness, bad faith, or fault," as Plaintiffs have expressly stated that they
Defendants have also been prejudiced by Plaintiffs' conduct in this case. As Judge Battani aptly noted in her September 6, 2018 Order denying Plaintiffs' objections, "Plaintiffs filed their lawsuit in June 2018, and have been frequent filers since that time." (DE 103, citing DEs 5-9, 12-17, 29, 31-33, 36-40, 49-54, 58-64).) Most of those filings have consisted of various documents titled "errata," "addendum," "supplement," or notices or requests for judicial notice of various documents, as well as purported amended complaints, and the majority of the documents filed have only been signed by one Plaintiff, although purportedly filed on behalf of both. Neither appears to be a licensed attorney, authorized by law to represent the interests of others in court proceedings. The Court determined "from the excessive activities and filings in this case that it is necessary to address the parties
As explained above, Plaintiffs were twice expressly warned "that failure to appear in person, as ordered, may result in sanctions, including dismissal of the case." (See DEs 96 at 2, 103 at 3.) Thus, Plaintiffs were "warned that failure to cooperate could lead to dismissal[.]" Schafer, 529 F.3d at 737.
Finally, while it is true that "less drastic sanctions" were not "imposed or considered before dismissal was ordered[,]" Schafer, 529 F.3d at 737, this case simply cannot proceed when Plaintiffs openly refuse to follow the Court's orders. Plaintiffs have stated that they "
Accordingly, for the reasons set forth above, Plaintiffs' lawsuit should be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b). And, in dismissing this case, Defendants' motions to dismiss (DEs 41, 46) should be deemed moot.
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as "Objection No. 1," and "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.
Plaintiff Jones has filed three documents labeled as "motions": (1) Plaintiff's "motion in limine" and "request for judicial notice" as to Plaintiff Jones' excessive day-time sleepiness (DE 14); Plaintiff's "motion for joinder of claims" and "request for judicial notice" (DE 33); and (3) Plaintiff's "request for an order" or an "errata" or "correction" to DEs 1 and 44 (DE 64.) These documents are, at best, less than clear, and simply seem to seek to file medical documents or correspondence in the Court record (DE 14), or to improperly attempt to amend the complaint to add additional claims without leave, while including multiple pages of exhibits, with hand-written notes on various pages. (DEs 33, 64.) However, none of these "motions" comply with Fed. R. Civ. P. 7 and E.D. Mich. LR 7.1 and/or 15.1, and therefore should be denied. Nor do they demonstrate any entitlement to relief on the merits.
While the Court holds pro se pleadings to "less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520 (1972), "the lenient treatment generally accorded to pro se litigants has limits." Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)). The various medical records and email communications Plaintiff attaches to his "motions" are not "adjudicative fact[s]" that are either "generally known in the trial court's territorial jurisdiction" or that "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned," and thus are not proper for judicial notice. Fed. R. Evid. 201. Judges "have no obligation to act as counsel or paralegal to pro se litigants." Pliler v. Ford, 542 U.S. 225, 231 (2004). Rather, pro se litigants are required to follow the Federal Rules of Civil Procedure, the Eastern District of Michigan Local Rules, and my Practice Guidelines, including those rules and guidelines governing proper filing of motions and amending pleadings. Because Plaintiff's "motions" (DEs 14, 33, 64) do not comply with the Federal Rules of Civil Procedure and the Court's Local Rules, and do not otherwise demonstrate merit, they are
Finally, in recognition of the Court's "broad discretion . . . as an incident to its power to control its own docket," the stay in this matter remains in effect pending Judge Battani's' final ruling on this Report and Recommendation (with the exception of the filing of proper objections, appeals and motions for reconsideration). See Clinton v. Jones, 520 U.S. 681, 706 (1997). Balancing the "competing interests" of the parties, and the interest of the Court in controlling its docket, the Court concludes that the best use of judicial resources is to continue to stay this action pending the final decision on this Report and Recommendation.
