Opinion
Case No. 04-CV-10039-BC.
August 26, 2004
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS (Dkt. 8)
I. RECOMMENDATION
For the reasons set forth below, IT IS RECOMMENDED that Defendant's Motion to Dismiss be DENIED. II. REPORT
A. Introduction and Facts
Pending, pursuant to an Order of Reference from United States District Judge David Lawson for all pretrial matters (Dkt. 5), is the above-entitled motion. Plaintiff has filed a response opposing the motion, and Defendant has filed a reply. (Dkts. 10, 12.) Upon review, I conclude that pursuant to E.D. Mich. LR 7.1(e)(2), this motion is ready for Report and Recommendation without oral argument.
Plaintiff initiated the instant lawsuit on February 17, 2004, by means of a complaint which seeks to reduce to judgment the unpaid federal tax assessments against Defendant and to foreclose federal tax liens upon property said to be owned by Defendant. (Compl., Dkt. 1.) Defendant, proceeding pro se, filed an answer (Dkt. 4), and the order of reference followed. The day after receiving the order of reference, an Order Requiring Rule 26(f) Meeting and Setting Date for Initial Rule 16 Conference was issued. (Dkt. 6.) That order scheduled an in-person initial pretrial conference and directed the parties to meet and to submit a joint Rule 26(f) Plan and Status Report six days prior to the pretrial conference. Prior to the date set for the conference, the parties were notified that due to a scheduling conflict, the conference could not be held and would be rescheduled.
One week prior to the originally scheduled initial pretrial conference date, Defendant filed the instant motion, citing Fed.R.Civ.P. 41(b), and arguing that even though she had "maintained all sources of communication open for plaintiff contact to a maximum possible extent[,]" counsel for Plaintiff had never called or made any attempt to schedule the meeting required in the initial scheduling order. (Def.'s Mot., Dkt. 8 at 2.)
Rule 41(b) states:
(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
Plaintiff opposes the instant motion, arguing that the failure to arrange the required meeting was inadvertent, and "due to an administrative error[.]" (Pl.'s Resp., Dkt. 10 at 1.) Plaintiff's counsel represents that upon discovery of this error, he attempted to arrange for the required meeting but that his attempts "went unanswered." ( Id. at 2.) As a result, counsel for Plaintiff, two days prior to the original date scheduled for the initial pretrial conference filed a proposed Rule 26(f) Plan and Status Report without Defendant's input. In addition, counsel for Plaintiff argues that in light of the rescheduling of the initial conference, no party has been prejudiced.
The rescheduled conference took place on August 9, 2004. All parties appeared and presented knowledgeable and appropriate suggestions relating to the scheduling of further proceedings. A scheduling order issued the next day. (Dkt. 11.)
B. Analysis and Conclusions
I note first that the rescheduling of the initial status conference in this case was in no way caused by the conduct serving as the basis for the instant motion. Rather, it was due to a scheduling conflict on the part of this judicial officer. In light of the successful completion of a useful initial pretrial conference on the rescheduled date, I am entirely unable to discern how any party, or the Court, has been prejudiced by the conduct described in the instant motion. I suggest that at most the conduct complained of is excusable neglect on the part of Plaintiff's counsel, fully rectified by the time of the rescheduled pretrial conference. Pioneer Inv. Serv. Co. v. Brunswick Ass'n, 507 U.S. 380, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993).
Defendant makes much of the treatment she allegedly received at the hands of the Internal Revenue Service prior to the filing of this lawsuit. I suggest that those facts have no impact on the decision of the instant motion, as Defendant's vigorous arguments overlook the fact that the Federal Rules of Civil Procedure grant to federal courts discretion not accorded to the Internal Revenue Service. For these reasons, I suggest that the relief requested in the instant motion is inappropriate.
IV. REVIEW
The parties to this action may object to and seek review of this Report and Recommendation within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Howard v. Sec'y of Health Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are advised that making some objections, but failing to raise others, will not preserve all the objections a party may have to this Report and Recommendation. See 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, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.