Bailey v. KC Whiskey River, LLC

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DEARK BAILEY,
Plaintiff,
v.
KC WHISKEY RIVER, LLC,
Defendant.
)
)
)
)
)
)
)
)
)
Case No. 3:24-cv-00577
Judge Aleta A. Trauger
MEMORANDUM
Before the court is the defendant’s Motion to Dismiss (Doc. No. 30), which seeks the
involuntary dismissal of this case with prejudice to refiling under Rule 37 of the Federal Rules of
Civil Procedure or, in the alternative, dismissal with prejudice to refiling under Rule 41 for failure
to prosecute this action. The motion is supported by a Memorandum of Law and exhibits. (Doc.
Nos. 31–31-4.) The plaintiff, Deark Bailey, has not responded to the motion. Also pending before
the court is defendant’s Motion to Stay and to Modify the Scheduling Order. (Doc. No. 33.) The
plaintiff similarly has not responded to the motion. For the reasons set forth herein, the Motion to
Dismiss will be granted and the Motion to Stay will be denied as moot.
I. 	BACKGROUND
The pro se plaintiff, Deark Bailey, is an African-American gay male formerly employed
by the defendant KC Whiskey River, LLC. (Doc. No. 1.) The plaintiff alleges that he was hired by
the defendant as a manager-in-training and that he was subsequently elevated to the position of
kitchen manager on August 2, 2022. (Doc. No. 1 at 3.) The restaurant’s general manager, Frank
Ficili, initially gave the plaintiff a positive review. (Id. at 4.) However, Ficili terminated the
plaintiff on September 30, 2022, leaving no African-Americans on staff. (Id.) The separation notice
Case 3:24-cv-00577 Document 35 Filed 01/20/26 Page 1 of 8 PageID #: <pageID>

2
stated that the plaintiff was unable to perform the duties of kitchen manager and was not a “good
fit.” (Id. at 5.) The timing of this termination meant that the plaintiff was ineligible for a
performance bonus. (Id.) The plaintiff was replaced by a white male who transferred from another
restaurant owned by the defendant. (Id.) On October 3, 2022, following the plaintiff’s termination,
District Manager Martha Smith gave him a positive job recommendation. (Id. at 5–6.)
The plaintiff originally filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”), alleging violations of Title VII of the Civil Rights Act of
1964, as amended (“Title VII”), 42 U.S.C. § 2000 et seq., for discrimination based on race and
sexual orientation. (Doc. No. 1 at 1, 2.) The plaintiff submitted with his Complaint a copy of the
EEOC’s right to sue notice, issued on February 7, 2024. (Doc. No. 1-1.) The plaintiff subsequently
filed his Complaint in this court on May 8, 2024. (Doc. No. 1.) On the same day, the plaintiff
applied to proceed in forma pauperis (“IFP”) (Doc. No. 2), and the court granted plaintiff’s
application on June 17, 2024 (Doc. No. 5).
Because plaintiff was permitted to proceed IFP, the court screened his Complaint consistent
with 28 U.S.C. § 1915(e)(2)(B) and found that the plaintiff stated a colorable claim of race-based
discrimination under Title VII. (Doc. No. 5.) However, the court dismissed all remaining claims
alleging discrimination based on sexual orientation because the plaintiff did not allege that he was
treated differently from similarly situated heterosexuals. Id. The court then referred the case to the
Magistrate Judge under 28 U.S.C. § 636(b)(1)(A) and (B) to oversee service of process, enter a
scheduling order for management of the case, and to dispose or recommend disposition of any
pretrial motions. (Doc. No. 5.)
On April 21, 2025, the defendant served on plaintiff its First Set of Interrogatories and
Requests for Production of Documents. (Doc. No. 25.) The plaintiff failed to respond to the initial
Case 3:24-cv-00577 Document 35 Filed 01/20/26 Page 2 of 8 PageID #: <pageID>

3
requests and defendant’s subsequent follow-up emails. (Id.) Roughly two months later, the
defendant moved for a telephonic discovery dispute conference (see id.), and the Magistrate Judge
convened the conference on July 15, 2025 (Doc. No. 28). The defendant attended the conference,
but the plaintiff did not appear. (Id.) Subsequently, the Magistrate Judge ordered the defendant to
file an appropriate motion to address the status of discovery and the prosecution of this case. (Doc.
Nos. 28, 29.) On July 17, 2025, the defendant filed the instant Motion to Dismiss and
Memorandum in support. (Doc. Nos. 30, 31.)
The plaintiff did not respond to the defendant’s Motion to Dismiss, which argues that the
case should be dismissed with prejudice under either Rule 37 or Rule 41 of the Federal Rules of
Civil Procedure for failure to participate in and prosecute this action. (Doc. No. 30.) Roughly four
months later, the defendant filed a Motion to Stay and Modify the Scheduling Order. (Doc.
No. 33.) The defendant asks that the court stay all remaining case deadlines and proceedings
pending resolution of its Motion to Dismiss and, to the extent the action survives the motion, to
amend the deadlines set forth in the current Scheduling Order. Id.
The docket reflects that it has now been over 470 days since the plaintiff last took action
in this case.
II. 	LEGAL STANDARD
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 Link v. Wabash R.R. Co., 370 U.S.
626, 630 (1962) (recognizing “the power of courts, acting on their own initiative, to clear their
calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties
seeking relief”); Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (“It is well settled
Case 3:24-cv-00577 Document 35 Filed 01/20/26 Page 3 of 8 PageID #: <pageID>

4
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. The Sixth
Circuit therefore affords district courts “‘substantial discretion”’ regarding decisions to dismiss for
failure to prosecute. Id.1
Courts are to consider four factors for guidance when determining whether dismissal under
Rule 41(b) is appropriate: (1) the willfulness, bad faith, or fault of the plaintiff; (2) whether the
defendant has been prejudiced by the plaintiff’s conduct; (3) whether the plaintiff was warned that
failure to cooperate could lead to dismissal; and (4) the availability and appropriateness of other,
less drastic sanctions. Knoll, 176 F.3d at 363 (citing Stough v. Mayville Cmty. Schs., 138 F.3d 612,
615 (6th Cir. 1998)). “[N]one of the factors is outcome dispositive,” but “a case is properly
dismissed by the district court where there is a clear record of delay or contumacious conduct.” Id.
(citing Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980)); see also Muncy v. G.C.R.,
Inc., 110 F. App’x 552, 555 (6th Cir. 2004) (finding that dismissal with prejudice “is justifiable in
any case in which ‘there is a clear record of delay or contumacious conduct on the part of the
plaintiff’” (quoting Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 591 (6th Cir. 2001))). Because
dismissal without prejudice is a relatively lenient sanction as compared to dismissal with prejudice,
the “controlling standards should be greatly relaxed” for Rule 41(b) dismissals without prejudice
1 	This court’s Local Rules provide that “[c]ivil suits that have been pending for an
unreasonable period of time without any action having been taken by any party may be summarily
dismissed . . . without prejudice to refile or to move the Court to set aside the order of dismissal
for just cause.” L.R. 41.01(a) (dismissal of inactive cases). However, a district court can dismiss
an action for noncompliance with a local rule “only if the behavior of the noncomplying party rises
to the level of a failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.”
Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick & GMC Trucks, Inc., 173 F.3d 988, 992 (6th
Cir. 1999).
Case 3:24-cv-00577 Document 35 Filed 01/20/26 Page 4 of 8 PageID #: <pageID>

5
where “the dismissed party is ultimately not irrevocably deprived of his [or her] day in court.”
Muncy, 110 F. App’x at 556 (citing Nwokocha v. Perry, 3 F. App’x 319, 321 (6th Cir. 2001)).
III. 	ANALYSIS
A. 	The Plaintiff’s Bad Faith, Willfulness, or Fault
A plaintiff’s actions demonstrate bad faith, willfulness, or fault where they “‘display either
an intent to thwart judicial proceedings or a reckless disregard for the effect of [plaintiff’s] conduct
on those proceedings.’” Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005) (quoting
Mulbah, 261 F.3d at 591). The plaintiff’s repeated failures to respond to the defendant’s
interrogatories and requests for production, failure to appear for the July 15, 2025 discovery
conference, and failure to respond to defendant’s motion to dismiss demonstrate bad faith,
willfulness, or fault for purposes of Rules 37 and 41(b). See, e.g., Dickey v. Chagrin Tavern LLC,
No. 1:21-CV-00733, 2022 WL 597260, at *3 (N.D. Ohio Feb. 28, 2022) (finding that pro se
plaintiff's repeated refusal to participate in discovery, including failure to respond to discovery
requests and to schedule a deposition, weighed in favor of Rule 37 dismissal); Febus v. Ethicon,
Inc., No. 3:12-cv-00727, 2019 WL 7496564, at *4 (M.D. Tenn. Dec. 3, 2019) (finding that a
plaintiff “demonstrated a disregard for the cost of her conduct on the proceeding she initiated” and
“amount[ed] 	to 	a 	clear 	record 	of 	delay 	and 	contumacious 	conduct” 	where 	“[plaintiff’s]
disappearance caused her to miss . . . discovery deadlines, violate . . . orders that she appear at a
settlement conference and . . . ignore various motions to dismiss”), report and recommendation
adopted, 2020 WL 70925 (M.D. Tenn. Jan. 7, 2020). This factor therefore weighs in favor of
dismissal.
B. 	Prejudice to the Defendant
The second factor to examine is whether defendant has been prejudiced by the plaintiff’s
failure to prosecute. Generally, “[a] defendant is prejudiced by a plaintiff’s dilatory conduct if the
Case 3:24-cv-00577 Document 35 Filed 01/20/26 Page 5 of 8 PageID #: <pageID>

6
defendant is ‘required to waste time, money, and effort in pursuit of cooperation which [the
plaintiff] was legally obligated to provide.’” Carpenter, 723 F.3d at 707 (second alteration in
original) (quoting Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997)); see also
Schafer, 529 F.3d at 739 (same). Such prejudice typically arises in the discovery context. See, e.g.,
Harmon, 110 F.3d at 368 (finding prejudice where plaintiff failed to respond to defendant’s
interrogatories and a related motion to compel); Wright v. City of Germantown, No. 11-02607,
2013 WL 1729105, at *2 (W.D. Tenn. Apr. 22, 2013) (finding prejudice where defendant
“expended time and money pursuing [plaintiff’s] required initial disclosures and deposition
testimony”). Notably, time and effort spent on “typical steps in the early stages of litigation,” such
as answering a complaint or filing pretrial motions to advance the defendant’s position, are not
actions “necessitated by any lack of cooperation” and therefore do not weigh in favor of dismissal
for failure to prosecute. Schafer, 529 F.3d at 739. The Sixth Circuit explained in Schafer that, “[i]f
such efforts . . . [were] alone sufficient to establish prejudice” for the purpose of Rule 41(b), “then
every defendant who answers a complaint and responds even minimally to a lawsuit would be able
to claim prejudice,” a “result [that] would defy common sense.” Id. at 740.
Here, the record shows that the defendant repeatedly contacted the plaintiff to help
facilitate his discovery responses (Doc. Nos. 31–31-4); filed a motion for a discovery dispute
conference when those efforts failed (Doc. No. 25); and filed a motion to dismiss after the plaintiff
failed to attend the discovery conference (Doc. No. 30). The court finds that the defendant has
been prejudiced by the plaintiff’s conduct and that the second factor weighs in favor of dismissal.
Accord Carpenter, 723 F.3d at 707; Harmon, 110 F.3d at 368.
C. 	Prior Notice
Whether a party was warned that failure to cooperate could lead to dismissal “is a ‘key
consideration’” in the Rule 41(b) analysis. Schafer, 529 F.3d at 740 (quoting Stough, 138 F.3d at
Case 3:24-cv-00577 Document 35 Filed 01/20/26 Page 6 of 8 PageID #: <pageID>

7
615). In its Scheduling Order, the court advised the parties that failure to respond to a dispositive
motion “may result in the Court finding that the motion is not opposed, taking the facts alleged in
the motion as true, and granting the requested relief.” (Doc. No. 15 at 5.) The court also explained
that it may result in the dismissal of the case. Id. The third factor therefore weighs in favor of
dismissal.
D. 	Appropriateness of Other Sanctions
The defendant seeks dismissal of this action with prejudice. (Doc. No. 30.) Dismissal with
prejudice is a harsh “‘sanction of last resort.’” Peltz v. Moretti, 292 F. App'x 475, 478 (6th Cir.
2008). However, the court finds that the less-drastic sanction of dismissal without prejudice is
available and appropriate here. The Local Rules establish that dismissal of inactive cases “shall be
without prejudice to refile or to move the court to set aside the order of dismissal for just cause.”
L.R. 41.01(a). Dismissal without prejudice balances the court’s interest in “sound judicial case and
docket management” with “the public policy interest in the disposition of cases on their merits.”
Muncy, 110 F. App’x at 557 n.5; see also Mulbah, 261 F.3d at 590–91. Dismissal without prejudice
is particularly appropriate in cases of prolonged inactivity and where, as here, the plaintiff appears
pro se. See Schafer, 529 F.3d at 737 (noting that courts apply the four-factor test “‘more stringently
in cases where the plaintiff’s attorney’s conduct is responsible for the dismissal’” (quoting
Harmon, 110 F.3d at 367)). 2
2 	The court also notes that, even though the dismissal is without prejudice, the statute of
limitations might ultimately bar refiling.
Case 3:24-cv-00577 Document 35 Filed 01/20/26 Page 7 of 8 PageID #: <pageID>

8
IV. 	CONCLUSION
For the reasons set forth herein, the court will grant the defendant’s motion (Doc. No. 30)
and dismiss this case without prejudice. The defendant’s Motion to Stay and Modify the
Scheduling Order (Doc. No. 33) is subsequently denied as moot. An appropriate Order is filed
herewith.
____________________________________
Aleta A. Trauger
United States District Judge
Case 3:24-cv-00577 Document 35 Filed 01/20/26 Page 8 of 8 PageID #: <pageID>