SHANDLE MARIE RILEY, Plaintiff, v. HAMILTON COUNTY GOVERNMENT, DEPUTY DANIEL WILKEY, in his capacity as a deputy sheriff for Hamilton County Government and in his individual capacity, and DEPUTY JACOB GOFORTH, in his capacity as a deputy sheriff for Hamilton County Government and in his individual capacity, Defendants No. 1:19-CV-00304-Lead Case, Member Cases No. 1:19-CV-00305, No. 1:19-CV-00329, No. 1:19-CV-00348, No. 1:20-CV-00016, No. 1:20-CV-00017, No. 1:20-CV-00020, No. 1:20-CV-00044 United States District Court, E.D. Tennessee, Southern Division Filed June 01, 2021 Counsel Robin R. Flores, Flores Law Office, Chattanooga, TN, Andrew C. Clarke, Howard Brett Manis, The Cochran Firm, Memphis, TN, for Plaintiff. R. Dee Hobbs, Sharon McMullan Milling, Hamilton County Attorneys Office, Chattanooga, TN, for Defendant Hamilton County Government. James F. Exum, III, Logan Chase Threadgill, Chambliss, Bahner & Stophel, PC, James Micah Guster, Advice Law Firm, Sharon McMullan Milling, Hamilton County Attorneys Office, Chattanooga, TN, for Defendant Daniel Wilkey. W. Gerald Tidwell, Jr., Tidwell & Associates, Chattanooga, TN, for Defendant Jacob Goforth. Steger, Christopher H., United States Magistrate Judge REPORT AND RECOMMENDATION I. Introduction *1 This matter is before the Court upon Defendants Hamilton County, Daniel Wilkey, and Tyler McRae's Motion to Dismiss Plaintiff Michaela Swartz's Complaint [Doc. 343 in Case No. 1:19-cv-304 and Doc. 257 in Case No. 1:19-cv-348], pursuant to Fed. R. Civ. P. 37 and 41, for failure to prosecute. For the reasons stated herein, it is RECOMMENDED that that the referenced motions be GRANTED, and that Plaintiff Michaela Swartz's action, Michaela R. Swartz v. Hamilton County et al, 1:19-cv-00348, be DISMISSED with prejudice.[1] II. Facts Michaela Swartz's action was originally filed on November 6, 2019, in the Circuit Court of Hamilton County, Tennessee. This action was brought by Debra Cummings as parent and next friend of her then-minor daughter, M.R.S. (Michaela Swartz). On August 26, 2020, the Court appointed Attorney Catherine White as guardian ad litem for Michaela Swartz and substituted Attorney White for Debra Cummings as the real party in interest. [Doc. 255]. Attorneys Howard Manis and Andrew Clarke for the Cochrane Firm and Attorney Robin Flores represented Plaintiff in this case. No. 1:19-CV-348. On February 4, 2021, Attorneys Manis, Clarke, and Flores moved to withdraw as Plaintiff's counsel in Case No. 1:19-cv-348. [Doc. 322]. The following day, on February 5, 2021, Defendants Tyler McRae and Daniel Wilkey filed a motion to compel discovery from Plaintiff or, in the alternative, to dismiss Case No. 1:19-cv-348. [Doc. 325]. Defendant McRae sought answers signed under oath to interrogatories, as well as responses to requests to admit that had been served on Plaintiff on May 15, 2020. Defendant Wilkey sought answers signed under oath to interrogatories that had been served on Plaintiff on October 13, 2020. Defendants also sought an order compelling Michaela Swartz to appear for her own deposition. The Court held a video hearing on February 24, 2021, on counsel's motion to withdraw from their representation of Plaintiff [Doc. 322], as well as Defendants' Motion to Compel or, in the Alternative, Dismiss [Doc. 325]. Present for the hearing were attorneys Robin Flores and Andrew Clarke for Plaintiff; attorneys Dee Hobbs and Sharon Milling for Defendant Hamilton County; attorney Micah Guster for Defendant Daniel Wilkey; and attorney Gerald Tidwell for Defendant Tyler McRae. Attorney Catherine White was also present in her capacity as Guardian Ad Litem for Michaela Swartz. At the hearing, Ms. White informed the Court that Ms. Swartz had reached the age of majority, and Ms. White asked the Court to be relieved of her duties as guardian ad litem. Mr. Flores and Mr. Clarke represented that they had been unable to contact and communicate with Ms. Swartz in order to complete the outstanding discovery. Defense counsel, without contradiction from Mr. Flores, Mr. Clarke, or Ms. White, represented that Defendants had scheduled two depositions of Michaela R. Swartz on dates approved by Plaintiff's counsel—one by informal notice and one by notice pursuant to Fed. R. Civ. P. 30(b)(1). Counsel appeared for the first deposition; however, Michaela R. Swartz did not. Guardian Ad Litem Catherine White informed defense counsel twenty-four hours before the second deposition that Ms. Swartz would not appear. *2 Following the hearing, in an Order entered on March 1, 2021, the Court granted Ms. White's request to be relieved of her duties as guardian ad litem for Michaela Swartz and substituted Michaela Swartz for Catherine White as the real party in interest in Case No. 1:19-cv-348. [Doc. 338, March 1, 2021 Order]. The Court also permitted Attorneys Flores, Manis and Clarke to withdraw as counsel for Plaintiff. [Id.]. The Court then further ordered: 5. Plaintiff Michaela R. Swartz shall have Thirty (30) days from the entry of this Order to obtain new counsel or notify the Court that she intends to represent herself in this lawsuit. To that end, Plaintiff shall have her new counsel file a notice of appearance with the Clerk of Court, or Plaintiff shall inform the Court in writing indicating that she intends to appear pro se (i.e., represent herself) in this case, within Thirty days (30) days from the date of entry of this Order. In the absence of such written notification to the Court, the undersigned will recommend to the District Court Judge that this case be dismissed for failure to prosecute. 6. Defendants' Motion to Compel or, in the Alternative, Dismiss is GRANTED as follows: Plaintiff Michaela R. Swartz SHALL provide responses to interrogatories and requests to produce and SHALL appear for a deposition. The undersigned will hold a hearing at 2:00 p.m. on April 15, 2021, to determine Plaintiff's deadline to respond to outstanding discovery and to set her deposition. [Id. at ¶ ¶ 5-6 (underline is original)]. A copy of this Order was sent to Ms. Swartz by United States Mail to her mother's address—which is Michaela Swartz's last known mailing address—and to the email address for Ms. Swartz provided to the undersigned by counsel. On March 4, 2021, Judge Steger's law clerk sent an email to Ms. Swartz reminding her of the hearing on April 15, 2021, at 2:00 p.m., and providing her with the video link in Microsoft Teams so that Ms. Swartz could join the video hearing if she desired. Ms. Swartz failed to comply with the March 1, 2021 Order requiring her to inform the Court in writing whether she was going to represent herself or had secured new counsel. On April 2, 2021, Defendants filed a motion to dismiss Case No. 1:19-cv-348.[Doc. 343]. On April 15, 2021, at 2:00 p.m. the Court held the video conference previously scheduled. Ms. Swartz did not attend nor did counsel appear on her behalf. Defendants' counsel have submitted the affidavit of Kay Baker, a private investigator, dated March 26, 2021, in support of their motion to dismiss Michaela Swartz's action. [Doc. 344, Aff. of Kay Baker]. Ms. Baker reported the following: On March 5, 2021, she reached out to Ms. Swartz's mother, Debra Cummings, attempting to locate Ms. Swartz. Ms. Cummings did not know where Ms. Swartz was living, but she provided Kay Baker with Ms. Swartz' Facebook profile which is under the name “Nae Nae.” [Id. ¶¶ 3-5]. Ms. Cummings is only able to communicate with her daughter through Facebook Messenger. [Id. ¶ 10]. Ms. Cummings told Ms. Baker that she (Ms. Cummings) had received the March 1, 2021 Order from this Court and had sent screenshots on Facebook Messenger of the Order to her daughter. [Id. ¶ 4]. With Ms. Cummings acting as a go-between, Ms. Baker attempted to set up a meeting with Ms. Swartz but was unsuccessful. [Id. ¶¶ 5, 8, 9 -14]. Ms. Baker also attempted to set up a meeting with Ms. Swartz herself using Facebook Messenger to communicate but was still unsuccessful. [Id.]. Further, she was never able to determine Ms. Swartz' address. [Id.]. *3 On March 12, 2021, at 1:50 am, Ms. Swartz responded to a March 8, 2021, message Ms. Baker had sent her through Facebook Messenger. [Id. ¶ 11]. Ms. Swartz indicated she did not wish to proceed with this lawsuit. [Id.]. That same day, Ms. Baker sent Ms. Swartz through Facebook Messenger screen shots of the five page Order entered by this Court on March 1, 2021. [Id. ¶ 15]. III. Analysis Federal Rule of Civil Procedure 41(b) “confers on district courts the authority to dismiss an action for failure of a plaintiff to prosecute the claim or to comply with the Rules or any order of the Court.” Schafer v. City of Defiance Police Dep't, 529 F.3d 731, 736 (6th Cir. 2008) (citing Knoll v. AT&T, 176 F.3d 359, 362–63 (6th Cir. 1999)); see also Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (“It is well settled that a district court has the authority to dismiss sua sponte a lawsuit for failure to prosecute.”). Dismissal for failure to prosecute is a tool for district courts to manage their dockets and avoid unnecessary burdens on opposing parties and the judiciary. See Schafer, 529 F.3d at 736 (quoting Knoll, 176 F.3d at 363). The Sixth Circuit therefore affords district courts “substantial discretion” regarding decisions to dismiss for failure to prosecute. Id. The Court considers four factors when addressing a motion to dismiss under Rule 41(b): (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. Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005); see also Mager v. Wisconsin Central Ltd., 924 F.3d 831, 837 (6th Cir. 2019). Based on the foregoing facts, the Court concludes Ms. Swartz' failure to participate in the prosecution of her action is willful. She has refused to communicate with her lawyers preventing them from answering Defendants' written discovery. She has refused to appear for her own deposition twice. Despite receiving notice, albeit somewhat unconventionally, she has not complied with this Court's Order to inform the Court if she intends to proceed pro se or secure representation. Defendants have been prejudiced by Plaintiff's lack of cooperation because they have been unable to obtain facts necessary to prepare a defense. The Court warned Ms. Swartz that failure to comply with its March 1, 2021 Order would result in a recommendation that her action be dismissed. Finally, as to the last factor, the Court notes that, while Ms. Swartz has not been previously sanctioned, the Court finds imposing a lesser sanction would be futile. She told Kay Baker she no longer wants to proceed with her lawsuit, and she has left no address for the Court to provide to her notice of Court orders. Further, Defendants do not have a reasonable method to serve her with papers. Plaintiff's conduct indicates unequivocally that she does not wish to pursue this action. IV. Conclusion Accordingly, for good cause shown, it is RECOMMENDED that: *4 1. Defendants Hamilton County, Daniel Wilkey, and Tyler McRae's Motion to Dismiss Plaintiff Michaela Swartz's Complaint [Doc. 343 in Case No. 1:19-cv-304, and Doc. 257 in Case No. 1:19-cv-348] be GRANTED. 2. This action be DISMISSED with prejudice.[2] ENTER. Footnotes [1] Ms. Swartz case, No. 1:19-cv-348, is one of several member cases consolidated by the District Court. Because Shandel Marie Riley v. Hamilton County, No. 1:19-CV-304 is the lead case, and the Court has ordered that all filings in the member cases be filed in the lead case, all docket numbers referenced in this Report and Recommendation are docket numbers in Case No. 1:19-cv-304 unless specifically denoted otherwise. [2] Any objections to this Report and Recommendation must be served and filed within fourteen (14) days after service of a copy of this recommended disposition on the objecting party. Such objections must conform to the requirements of Rule 72(b) of the Federal Rules of Civil Procedure. Failure to file objections within the time specified constitutes a forfeiture of the right to appeal the District Court's order. Thomas v. Arn, 474 U.S. 140, 88 L.Ed.2d 435, 106 S. Ct. 466 (1985). The district court need not provide de novo review where objections to this report and recommendation are frivolous, conclusive or general. Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986). Only specific objections are reserved for appellate review. Smith v. Detroit Federation of Teachers, 829 F.2d 1370 (6th Cir. 1987).