Olufemi v. Detroit, City of

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Olugbenga Johnson Olufemi,

Plaintiff, Case No. 23-10386

v. Judith E. Levy United States District Judge City of Detroit, et al., Mag. Judge David R. Grand Defendants.

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ORDER OF DISMISSAL

On February 14, 2023, Plaintiff Olugbenga Johnson Olufemi filed this suit under 42 U.S.C. § 1983 against Lajoel Wasson.1 (ECF No. 1.) Plaintiff alleges that Wasson violated his First, Second, and Fourth Amendment Rights when Wasson and another officer arrested him, searched his house, and confiscated a firearm. (ECF No. 12, PageID.64, 67.) Plaintiff requested an entry of default against Wasson on November 30, 2023, stating he served Wasson by certified mail. (ECF

1 Plaintiff also brought suit against the City of Detroit and Arreona Mitchell, but they are dismissed from the case. (See ECF Nos. 19, 22.) No. 21, PageID.124.) While the certified mail receipt indicates that the summons was sent via certified mail, the receipt was signed by

“Marilyn Wasson” on April 8, 2023. (ECF No. 9, PageID.53.) Thus, Wasson had not been properly served under Federal Rule of Civil

Procedure 4(e) and Michigan law. (See ECF No. 26.) On February 15, 2024, the Court vacated the Clerk’s Entry of Default, denied Plaintiff’s motion for default judgment, and ordered Plaintiff to properly serve

Wasson by March 16, 2024. (Id.) Plaintiff did not file any evidence that he had served Wasson. 2 On April 8, 2024, the Court ordered Plaintiff to show cause in writing by April 19, 2024, why the case should not be

dismissed for failure to prosecute. (ECF No. 29.) Plaintiff did not respond to the show cause order. The Court dismisses this case without prejudice against Wasson

due to Plaintiff’s non-compliance with the Court’s show cause order and his failure to demonstrate any effort to serve or prosecute the case against Wasson. See Fed. R. Civ. P. 41(b); E.D. Mich. LR 41.2. When

2 Plaintiff filed a motion to compel discovery from the City of Detroit (ECF No. 27), but the Court denied this motion as the City of Detroit was no longer a party. (ECF No. 29.) Plaintiff has not filed any other documents in this case since the Court’s February 15, 2024 order. contemplating the dismissal of a case for failure to prosecute, the Court considers the following four factors:

(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. Bay Corrugated Container, Inc. v. Gould, Inc., 609 F. App’x 832, 835 (6th Cir. 2015) (quoting Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999)). “While none of these factors is dispositive, a case may be dismissed by a district court where there is a clear record of delay or contumacious conduct on the part of the plaintiff.” Mulbah v. Detroit

Bd. of Educ., 261 F.3d 586, 591 (6th Cir. 2001) (citing Knoll, 176 F.3d at 363; Little v. Yeutter, 984 F.2d 160, 162 (6th Cir. 1993)). Here, the first factor favors dismissal. “To show that a party’s

failure to comply was motivated by bad faith, willfulness, or fault, the conduct ‘must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of [his] conduct on those proceedings.’”

Mager v. Wis. Cent. Ltd., 924 F.3d 831, 837 (6th Cir. 2019) (alteration in original) (quoting Carpenter v. City of Flint, 723 F.3d 700, 705 (6th Cir. 2013)). Plaintiff has known since February 15, 2024, that his service of Wasson was not compliant with the Federal and Michigan rules. (ECF

No. 26.) Plaintiff missed his deadline to properly serve Wasson, and missed his deadline to show cause as to why the case should not be

dismissed for failure to prosecute. (Id.; ECF No. 29.) Plaintiff has not complied with the Court’s orders and deadlines on multiple occasions and has failed to move this case forward.

The second factor does not favor dismissal. “Assessing prejudice for purposes of Rule 41(b) requires the district court to look to the ‘waste[d] time, money, and effort in pursuit of cooperation which [the

non-dilatory party] was legally obligated to provide.’” Rodriguez v. Hirshberg Acceptance Corp., 62 F.4th 270, 277–78 (6th Cir. 2023) (alteration in original) (quoting Wu v. T.W. Wang, Inc., 420 F.3d 641,

644 (6th Cir. 2005)). Here, Wasson has not been prejudiced by Plaintiff’s conduct because he has not been served with the complaint or appeared in the case.

The third factor favors dismissal. Whether the plaintiff was warned about the possibility of dismissal “is . . . a key consideration when determining whether a district court abuses its discretion in dismissing a case pursuant to Rule 41(b).” Stough v. Mayville Cmty. Schs., 138 F.3d 612, 615 (6th Cir. 1998). Here, the Court previously

ordered Plaintiff to “show cause why the case should not be dismissed for failure to prosecute.” (ECF No. 29.)

The fourth factor also favors dismissal because the Court considered—and imposed—lesser sanctions prior to this dismissal order. The Court denied Plaintiff’s motion for default judgment as to

Wasson and vacated the Clerk’s entry of default because Wasson was not properly served. (ECF No. 26.) The Court gave Plaintiff additional time to serve Wasson, but Plaintiff missed the deadline and did not

respond to the Court’s subsequent show cause order. (See ECF No. 29.) In sum, three of the four factors discussed above favor dismissal of the action against Wasson for want of prosecution. Dismissal is

appropriate because Plaintiff has failed to comply with the Court’s orders. See Fed. R. Civ. P. 41(b); E.D. Mich. LR 41.2. Accordingly, this action is DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED. Dated: April 25, 2024 s/Judith E. Levy Ann Arbor, Michigan JUDITH E. LEVY United States District Judge CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or first-class U.S. mail addresses disclosed on the Notice of Electronic Filing on April 25, 2024.

s/William Barkholz WILLIAM BARKHOLZ Case Manager