Estate of Ruth Ann Johnson v. Law Offices of David A. Sims

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 26a0325n.06

No. 25-6166

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 22, 2026 KELLY L. STEPHENS, Clerk ) THE ESTATE OF RUTH ANN JOHNSON, ) through Gary Harrison, Administrator, ) ON APPEAL FROM THE Plaintiff-Appellant, ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN v. ) DISTRICT OF KENTUCKY ) LAW OFFICES OF DAVID A SIMS, PLLC, ) et al, OPINION ) Defendants-Appellees ) ) )

Before: CLAY, GIBBONS, and BLOOMEKATZ, Circuit Judges.

CLAY, Circuit Judge. Gary Harrison, acting as the administrator of Plaintiff Estate of

Ruth Ann Johnson, filed this suit against Defendants David A. Sims, Law Offices of David A.

Sims, PLLC, Kyle R. Salyer, and Morgan Collins & Yeast, PLLC, alleging legal malpractice and

breach of contract claims. The district court dismissed Plaintiff’s case with prejudice following

Plaintiff’s counsel’s absence at multiple court-mandated telephonic conferences and failure to

timely respond to a show cause order. Plaintiff’s timely appeal followed. For the reasons

discussed below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual Background

Ruth Ann Johnson was a resident in the care of the Ashland Nursing Home Corporation,

Inc. (“Ashland”) and Kingsbrook Lifecare Center (“Kingsbrook”) in Boyd County, Kentucky. On No. 25-6166, Estate of Ruth Ann Johnson v. Law Offices of David A Sims, PLLC

November 23, 2018, Johnson suffered a left foot fracture and other injuries at Kingsbrook.

Johnson’s son, Gary Harrison, who was acting as her Conservator, filed a complaint in Kentucky

state court against Ashland and Kingsbrook for their negligent treatment and failure to properly

care for Johnson. Harrison retained Defendants David A. Sims, Law Offices of David A. Sims,

PLLC, Kyle R. Salyer, and Morgan Collins & Yeast, PLLC to represent Johnson’s interests in that

litigation.

Unfortunately, for Johnson, her injuries caused her health to decline. She eventually passed

away on June 4, 2021. Johnson’s death made it necessary for Defendants to revive her suit against

Ashland and Kingsbrook in Kentucky state court, but Defendants neglected to do so. Instead,

Defendants falsely represented to Harrison that the action was being revived. Consequently,

Johnson’s state case was dismissed with prejudice.

B. Procedural History

On September 28, 2023, Gary Harrison, acting as the administrator of Plaintiff Estate of

Ruth Ann Johnson, filed this suit against Defendants David A. Sims, Law Offices of David A.

Sims, PLLC, Kyle R. Salyer, and Morgan Collins & Yeast, PLLC in the United States District

Court for the Southern District of West Virginia. Mark A. Atkinson and Paul L. Frampton, Jr.,

two attorneys based in West Virginia, represented the estate. The suit alleged legal malpractice

and breach of contract claims against Defendants for their failure to revive Johnson’s lawsuit in

Kentucky state court following her death and was brought in federal court on the basis of diversity

jurisdiction. This suit was then transferred to the Eastern District of Kentucky because neither

Defendants Sims nor Salyers were residents of West Virginia.

Upon transfer, Magistrate Judge Edward B. Atkins entered an order on the docket

scheduling a telephonic conference to occur on September 10, 2024. Neither of Plaintiff’s counsel,

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however, appeared for the conference. Magistrate Judge Atkins then scheduled a mid-discovery

telephonic conference for January 13, 2025, which was reflected in the text of the minute entry for

the September 10, 2024 telephonic conference, the civil minutes of that conference, and a

subsequent scheduling order entered on September 12, 2024. January 13, 2025 came and went

and Plaintiff’s counsel again failed to appear for the scheduled telephonic conference.

Consequently, Magistrate Judge Atkins issued an order to Plaintiff to show cause “on or before

January 22, 202[5]” as to why the matter should not be dismissed for its failure to appear for both

the January 13, 2025 and September 10, 2024 telephonic conferences. Civil Minutes, R. 49,

PageID #44.

Plaintiff’s attorneys replied two days after the deadline. Frampton explained that he had

taken primary responsibility over the case even though Atkinson was also an attorney of record.

He explained that he never received notice of either conference until they received the court’s

order to show cause in the mail on January 21, 2025. Frampton did not personally receive the

copy of the order until January 22, 2025 because he was out of office attending a focus group on

January 21, 2025. From this physical notice, he inquired with the Clerk’s Office for the Eastern

District of Kentucky to determine why he had not received electronic notice of the prior scheduling

orders. He learned that he incorrectly assumed that because he was a member of good standing of

the Kentucky State Bar he would receive electronic notice of any docket activity following the

cases transfer to the Eastern District of Kentucky. Instead, he would have first needed to be

admitted to the Eastern District of Kentucky. He also learned from the Clerk’s Office that notice

of this requirement is not necessarily given in transferred cases.

Frampton further explained that the court had sent notices of case activity to Atkinson’s

work email. However, Atkinson did not personally monitor his email in the first instance, relying

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instead on his secretary to inform him of relevant emails. Atkinson’s secretary failed to do so for

this case because Frampton had told the secretary that Frampton had primary responsibility of the

matter and would instead keep Atkinson updated on the case’s matters.

Despite these issues, Frampton noted that his firm had actively engaged in the discovery

process. Frampton represented that he completed and filed his application for admission to

practice before the Eastern District of Kentucky. He was admitted to practice before the court on

February 3, 2025. Perhaps satisfied by Plaintiff counsel’s response, Magistrate Judge Atkins

declined to take action on his order to show cause and set further discovery deadlines.

On July 15, 2025, the court issued an order setting a third telephonic conference on July

22, 2025 for the purposes of scheduling a settlement conference. Plaintiff’s counsel once again

failed to appear. Magistrate Judge Atkins then entered an order scheduling a telephonic settlement

conference on September 16, 2025. The order also directed Plaintiff to show cause by July 28,

2025 for their counsel’s failure to appear for the July 22, 2025 telephonic conference. Plaintiff

was again warned that a failure to respond to this order would result in the cancellation of the

fourth settlement conference and a recommendation that this case be dismissed. The July 28, 2025

deadline came and passed without a response from Plaintiff’s counsel. Accordingly, Magistrate

Judge Atkins vacated the order setting the settlement conference and recommended to the district

court that the case be dismissed with prejudice. A day after the deadline, Plaintiff filed its response

to the show cause order as well as a post hoc motion for extension of time to respond to the show

cause order.

Plaintiff’s counsel then filed an objection to Magistrate Judge Atkin’s recommendation to

dismiss the case. They blamed their failure to respond to the order to show cause on their failure

to review the court’s July 22, 2025 order, which was caused by a three-day backlog of emails.

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Counsel also noted that Magistrate Judge Atkins called counsel on July 22 to inform them that

they missed the scheduled telephonic conference but did not mention the order to show cause.

The district court considered and overruled Plaintiff’s objections to Magistrate Judge

Atkin’s recommendation to dismiss the case because Plaintiff’s conduct amounted to a failure to

prosecute. It also denied as moot Plaintiff’s motion for extension of time to respond to the court’s

July 22, 2025 show cause order. Plaintiff’s timely appeal followed. For the reasons discussed

below, we affirm the judgment of the district court.

II. DISCUSSION

A. Standard of Review

We review both a district court’s denial of a motion for extension of time under Federal

Rule of Civil Procedure 6 and decision to dismiss a lawsuit for failure to prosecute for abuse of

discretion. See Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th Cir. 2006); Schafer v.

City of Defiance Police Dep’t, 529 F.3d 731, 736 (6th Cir. 2008). Under this standard, “we will

reverse the district court ‘if it improperly applied the governing law, used an erroneous legal

standard, or relied upon clearly erroneous findings of fact.’” Memphis A. Philip Randolph Inst. v.

Hargett, 2 F.4th 548, 554 (6th Cir. 2021) (quoting City of Pontiac Retired Emps. Ass’n v.

Schimmel, 751 F.3d 427, 430 (6th Cir. 2014)).

B. Analysis

1. Denial of Motion for Extension of Time to Respond to Show Cause Order

“[A] district court has broad discretion to manage its docket.” ACLU of Ky. v. McCreary

County, 607 F.3d 439, 451 (6th Cir. 2010). Pursuant to Federal Rule of Civil Procedure 6(b)(1)(B),

a court may extend an expired deadline “for good cause . . . if the party failed to act because of

excusable neglect.” C.S. v. McCrumb, 135 F.4th 1056, 1069 (6th Cir. 2025) (quoting Fed. R. Civ.

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P. 6(b)(1)(B)). In reviewing excusable neglect determinations, we balance “five principal factors:

(1) the danger of prejudice to the nonmoving party, (2) the length of the delay and its potential

impact on judicial proceedings, (3) the reason for the delay, (4) whether the delay was within the

reasonable control of the moving party, and (5) whether the late-filing party acted in good faith.”

Nafziger, 467 F.3d at 522.

The district court ultimately did not abuse its discretion when it denied Plaintiff’s motion

for an extension of time. Plaintiff’s failure to act was due to neglect, but it was not excusable. To

be sure, the length of the one day delay and its potential prejudice to Defendant were minimal. See

id. at 522–23 (noting how a two day delay likely had no impact on judicial proceedings). The

reason for the delay, however, was not excusable. As discussed, Plaintiff’s counsel knew they had

received the relevant July 22, 2025 order from the district court but delayed in reading it because

they purportedly had a 3-day backlog of emails to review. This backlog, however, does not explain

why it took Plaintiff’s counsel 7 days to respond to the show cause order after it was received. The

delay was also entirely within the control of Plaintiff’s counsel since they controlled their emails

and were responsible for checking them. Plaintiff’s counsel’s prior failures to timely respond to

the court’s orders should have also put them on notice as to how insufficient their internal office

procedures were at informing counsel of pertinent court orders. From counsel’s history of failure

to pay attention to or adhere to the court’s orders, it is difficult to conclude that Plaintiff’s counsel

acted in good faith. Accordingly, we affirm the district court’s denial of Plaintiff’s motion for an

extension of time to respond to the July 15, 2025 show cause order.

2. Dismissal for Failure to Prosecute

Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action

for a plaintiff’s failure to prosecute the claim or to comply with the rules or any order of the court.

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Schafer, 529 F.3d at 736. This is intended “as a tool to effect management of [the court’s] docket

and avoidance of unnecessary burdens on the tax-supported courts and opposing parties.” Id.

(quoting Knoll v. AT-&-T, 176 F.3d 359, 362–63 (6th Cir. 1999)). We give district courts

“substantial discretion in serving these tasks.” Id. (quoting Knoll, 176 F.3d at 363).

We consider four factors when reviewing a district court’s dismissal of a case under Federal

Rule of Civil Procedure 41(b) for failure to prosecute:

(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.

Knoll, 176 F.3d at 363. Though a plaintiff’s case may be dismissed because of his counsel’s

unexcused conduct, see Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962), “we have increasingly

emphasized directly sanctioning the delinquent lawyer rather than an innocent client.”

Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (quoting Coleman v. Am. Red Cross,

23 F.3d 1091, 1095 (6th Cir. 1994)); see also Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 590

(6th Cir. 2001) (“[T]his Court has expressed an extreme reluctance to uphold the dismissal of a

case merely to discipline a party’s attorney.”). We thus apply these factors “more stringently in

cases where the plaintiff’s attorney’s conduct is responsible for the dismissal.” Harmon v. CSX

Transp., Inc., 110 F.3d 364, 367 (6th Cir. 1997).

a. Willfulness, Bad Faith, or Fault

To determine whether a plaintiff’s actions were motivated by willfulness, bad faith, or

fault, “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

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(quoting Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005)). We have noted that “[t]he

dismissal of a claim for failure to prosecute is a harsh sanction which the court should order only

in extreme situations showing a clear record of contumacious conduct by the plaintiff.” Id.

(quoting Wu, 420 F.3d at 643). “‘Contumacious’ is defined as ‘perverse in resisting authority’ and

‘stubbornly disobedient.’” Id. at 737 (quoting Webster’s Third New International Dictionary 497

(1986)). “Although typically 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.”

Knoll, 176 F.3d at 363.

As discussed, the conduct at issue includes (1) Plaintiff’s counsel’s repeated failures to

appear for court-mandated telephonic conferences and (2) counsel’s failure to timely respond to

the district court’s July 22, 2025 show cause order. The latter behavior alone is typically

insufficient to support a clear record of contumacious conduct. See Carpenter, 723 F.3d at 705

(summarizing cases); Mulbah, 261 F.3d at 592.

The former conduct, however, is particularly relevant to this inquiry. We have previously

upheld a district court’s dismissal of a case for a plaintiff’s counsel’s failure to appear for multiple

pre-trial conferences. See, e.g., Knoll, 176 F.3d at 364; Coston v. Detroit Edison Co., 789 F.2d

377, 379 (6th Cir. 1986) (per curiam). In such cases we repeatedly emphasized how a plaintiff’s

counsel’s unexcused failures to appear for pre-trial conferences sufficed to affirm a district court’s

finding that counsel had engaged in contumacious conduct. See Knoll, 176 F.3d at 364 (“Here,

counsel neglected plaintiff’s case, repeatedly ignored court orders without excuse, and ultimately

attempted to force the court to grant a continuance by refusing to proceed on the day of trial.”);

Coston, 789 F.2d at 379 (“The plaintiff’s problem here was his chosen attorney’s failure to appear

on repeated occasions under circumstances deemed unacceptable to the court . . . .”). Indeed, in

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cases where we found the district court abused its discretion in dismissing a case for failure to

prosecute, we distinguished a counsel’s less harmful conduct, such as failing to comply with

procedural rules or engage with discovery, from the conduct at issue here: counsel’s “fail[ure] to

appear at scheduled pretrial conferences.” Carpenter, 723 F.3d at 705; Mulbah, 261 F.3d at 592.

Plaintiff’s counsel’s three unexcused prior failures to appear for court-mandated telephonic

conferences demonstrate a clear record of contumacious conduct through a reckless disregard for

the effect of his conduct on judicial proceedings. Accordingly, this factor weighs in favor of

dismissal.

b. Prejudice

An adversary is prejudiced by the dismissed party’s conduct where the adversary “waste[d]

time, money, and effort in pursuit of cooperation which [the plaintiff] was legally obligated to

provide.” Harmon, 110 F.3d at 368. The district court found that Defendants wasted resources

preparing for and attending the relevant three court-mandated telephonic conferences. This

suffices to satisfy the second prong. See Schafer, 529 F.3d at 737–40; Rogers v. City of Warren,

302 F. App’x 371, 378 (6th Cir. 2008). Thus, this factor also weighs in favor of dismissal.

c. Notice

“‘[P]rior notice, or the lack thereof, is . . . a key consideration’ in determining whether a

district court abused its discretion in dismissing a case for failure to prosecute.” Schafer, 529 F.3d

at 737 (quoting Stough v. Mayville Cmty. Schs., 138 F.3d 612, 615 (6th Cir. 1998)). We typically

require prior notice to be “a ‘clear indication’ that [the court] intended to dismiss [a plaintiff’s]

case if [the plaintiff] did not take further action.” Wu, 420 F.3d at 644.

The district court’s notice clears this bar. As discussed, the July 22, 2025 order explicitly

warned Plaintiff that a failure to respond to the show cause order “will result in the undersigned . . .

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recommending that this case be dismissed based on [Plaintiff’s] persistent failures to appear.”

Order, R. 82, PageID #386. Because the order explicitly warned Plaintiff that Magistrate Judge

Atkins would recommend dismissal without a timely response, this third factor supports the district

court’s ultimate dismissal of the case.

d. Alternative Sanctions

Finally, we consider “whether less drastic sanctions were imposed or considered before

dismissal was ordered.” Knoll, 176 F.3d at 363. “Although a district court in extreme cases has

the power to dismiss with prejudice as the first and only sanction, ‘where the district court has not

manifested consideration of less drastic sanctions, it is more difficult, although not impossible, for

this court to conclude that the district court exercised its discretion with appropriate forethought.’”

Carpenter, 723 F.3d at 709 (quoting Harmon, 110 F.3d at 368–69). In such cases, we have said

that “‘the sanction of dismissal is appropriate only if the attorney’s actions amounted to failure to

prosecute and no alternative sanction would protect the integrity of the pretrial process.’” Schafer,

529 F.3d at 738 (quoting Wu, 420 F.3d at 644).

The district court did, however, consider lesser sanctions in its order dismissing this case

with prejudice. It ultimately concluded that “it appear[ed] unlikely that [those sanctions] would

adequately affect Plaintiff’s conduct.” Order, R. 123, PageID #834. Due to this consideration,

this fourth factor weighs in favor of dismissing this action. See Mager v. Wis. Cent. Ltd., 924 F.3d

831, 840 (6th Cir. 2019).

III. CONCLUSION

All four factors counsel in favor of dismissal. The district court therefore did not abuse its

discretion when it dismissed this case with prejudice for Plaintiff’s counsel’s repeated failure to

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appear for court-mandated hearings. For the reasons set forth above, we AFFIRM the district

court’s judgment.

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