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Myers v. Kinney

United States District Court, Southern District of Georgia, Brunswick Division

May 12, 2015

MARCELLE GORDON MYERS, Plaintiff,
v.
P.C. STEPHEN V. KINNEY, DAVID ALRIDGE, CHARLES C. SMITH, JR., AMERIS BANK, JOY LYNN TURNER, Clerk Of Superior Court Of Camden County; MICHELLE MCCORVEY, SCARLETT G. STETHAN, JAMES EMORY STEIN, and GILBERT HARRELL, Harrell, Summerford & Martin Attys.; Defendants.

ORDER

LISA GODBEY WOOD, CHIEF JUDGE

Plaintiff, proceeding pro se, filed this action against several Defendants: Stephen V. Kinney, P.C. ("Kinney"); David Aldridge ("Aldridge")[1]; Charles C. Smith, Jr. ("Smith"); Gilbert, Harrell, Sumerford & Martin, P.C. ("GHSM")[2]; Ameris Bank; Joy Lynn Turner, Clerk of Superior Court of Camden County ("Turner"); Michelle McCorvey ("McCorvey"); Scarlett G. Stethan ("Stethan"); and James Emory Stein ("Stein"). Though this case has been pending for over a year, Plaintiff has failed to serve some Defendants and has not responded to other Defendants' Motions to Dismiss. The Court has repeatedly warned Plaintiff that his failure to pursue his claims against these Defendants will result in dismissal of those claims. Plaintiff has failed to heed those warnings.

Consequently, and for reasons set forth more fully below, Plaintiff's claims against Defendants Kinney, Stethan, and Stein are DISMISSED WITHOUT PREJUDICE for Plaintiff's failure to timely serve the Complaint. Additionally, the Court DISMISSES WITHOUT PREJUDICE all claims against Defendants Aldridge, Ameris Bank, 6HSM, McCorvey, and Smith for Plaintiff's failure to prosecute. These Defendants' Motions to Dismiss the Complaint (Dkt. Nos. 10-11) as well as all Defendants' Motions to Dismiss the Amended Complaint (Dkt. Nos. 18, 20, 22) are DENIED AS MOOT. Additionally, the Court provides direction to Plaintiff regarding his only remaining claims, those asserted against Defendant Turner, which Plaintiff is urged to follow.

BACKGROUND

Plaintiff filed this action on May 5, 2014. Dkt. No. 1. He originally moved to proceed in forma pauperis. Dkt. No. 3. The Court denied that Motion and allowed Plaintiff twenty-one (21) days to pay the filing fee. Dkt. No. 4. After he failed to meet that deadline, the Court dismissed his action. Dkt. No. 6. However, the Court later reopened the case after Plaintiff belatedly submitted the filing fee. Dkt. No. 7. The Court issued Plaintiff summons for all Defendants on October 27, 2014. Dkt. No. 8.

Defendants Smith and GHSM filed a consolidated Motion to Dismiss Plaintiff's Complaint on November 17, 2014. Dkt. No. 10. On that same date, Defendants Aldridge, Araeris Bank, and McCorvey also moved to dismiss Plaintiff's Complaint. Dkt. No. II.[3] On December 11, 2014, the Court ordered Plaintiff to file any objections to these Motions to Dismiss or to otherwise inform the Court of his decision not to object to the Motions within twenty-one (21) days. Dkt. No. 15. The Court made clear that should Plaintiff fail to respond, "the Court will determine that there is no opposition to the motions." Id. at p. 2 (citing Local Rule 7.5). In the months since that Order was issued, Plaintiff has not filed any response to the Motions to Dismiss.

Additionally, on January 15, 2014, the Court ordered Plaintiff to show cause why service has not been made upon Defendants Kinney, Stethan, and Stein. Dkt. No. 21. The Court explained that Federal Rule of Civil Procedure 4(m) required Plaintiff to serve these Defendants within 120 days of the filing of his Complaint. Id. The Order advised Plaintiff that his failure to establish good cause "will result in the dismissal of his claims against these Defendants, without prejudice." Id. Plaintiff has not responded to that Order and has still not served Defendants Kinney, Stethan, and Stein.

DISCUSSION

As laid out above, despite the fact that this action has been pending for over a year, Plaintiff has failed to serve Defendants Kinney, Stethan, and Stein. Furthermore, Plaintiff has entirely disregarded the Court's Order to show cause why he failed to serve these Defendants within 120 days. Federal Rule of Civil Procedure 4(m) provides,

If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). With the Court having provided notice to Plaintiff and with Plaintiff not providing any cause for his failure to serve Defendants Kinney, Stethan, and Stein, the Court must DISMISS Plaintiff's claims against these Defendants.

In addition to providing for dismissal for failure to serve, the Federal Rules of Civil Procedure also authorize the Court to dismiss claims for failure to prosecute. Specifically, Rule 41(b) "authorizes a district court to dismiss a complaint for failure to prosecute or failure to comply with a court order or the federal rules." Gratton v. Great Am. Commc'ns, 178 F.3d 1373, 1374 (11th Cir. 1999). Dismissal under Rule 41(b) is warranted "where there is a clear record of 'willful' contempt and an implicit or explicit finding that lesser sanctions would not suffice." Id.

Furthermore, this Court possesses inherent power to sanction errant and dilatory litigants. See Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335 (11th Cir. 2002) ("Courts have the inherent authority to control the proceedings before them, which includes the authority to impose 'reasonable and appropriate' sanctions."). These inherent powers include the power to dismiss an action for failure to prosecute. See In re Mroz, 65 F.3d 1567, 1575 n.9 (11th Cir. 1995); Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985)("The court's power to dismiss is an inherent aspect of its authority to enforce its orders and insure prompt disposition of lawsuits."). "The decision to dismiss for want of prosecution lies within the trial court's discretion and can be reversed only for an abuse of discretion." McKelvey v. AT & T Techs., Inc., 789 F.2d 1518, 1520 (11th Cir. 1986).

Notwithstanding the availability of such a sanction, dismissal of an action for failure to prosecute should only be employed when lesser sanctions would be inappropriate, and "only in the face of a clear record of delay or contumacious conduct by the plaintiff." Id. (quoting Martin-Trigona v. Morris, 627 F.2d 680, 682 (5th Cir. 1980)). Contumacious conduct warranting dismissal for failure to prosecute includes "protracted foot-dragging, " "defiance of court orders, " "ignoring warnings, " and "wasteful expenditure of the court's time." Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1, 4-5 (1st Cir. 2002). Pertinent to the case at hand, the Court may dismiss a case for failure to prosecute when a plaintiff fails to respond to motions and Court orders. See Vega-Encarnacion v. Babilonia, 344 F.3d 37, 40 (1st Cir. 2003) (recognizing that failure to respond to motion renders party susceptible to ...


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