United States District Court, S.D. Georgia, Savannah Division
STAN BAKER UNITED STATES DISTRICT JUDGE
matter comes before the Court after Plaintiffs' failure
to properly serve their Complaint and their failure to comply
with or in any way respond to the Court's September 25,
2018 Order. (Doc. 33.) The Court DISMISSES
this action WITHOUT PREJUDICE for
Plaintiff's failure to prosecute, failure to follow this
Court's Orders, and failure to timely serve the
Complaint. The Court DIRECTS the Clerk of
Court to CLOSE this case.
background of this case is laid out in detail in the
Court's September 25, 2018 Order. (Id.) Put
succinctly, after filing this action approximately eighteen
months ago, Plaintiffs only properly served one Defendant,
JPMorgan Chase Bank. The Court since dismissed JPMorgan Chase
Bank from this action. (Doc. 25.) In that Order of dismissal
and in the Court's September 25, 2018 Order, the Court
ordered Plaintiffs to show cause for their failure to timely
serve the other Defendants. (Id. at p. 11 n. 4; Doc.
33, p. 3.) Though Plaintiffs made some response to the
Court's Order of dismissal, they have made no response to
the September 25, 2018 Order or taken any other action in
this case since that Order.
district court may dismiss a plaintiff's claims sua
sponte pursuant to either Federal Rule of Civil
Procedure 41(b) (“Rule 41(b)”) or the court's
inherent authority to manage its docket. Link v. Wabash
R.R. Co., 370 U.S. 626 (1962); Coleman v. St. Lucie
Cty. Jail, 433 Fed.Appx. 716, 718 (11th Cir. 2011)
(citing Fed.R.Civ.P. 41(b) and Betty K Agencies, Ltd. v.
M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005)). In
particular, Rule 41(b) allows for the involuntary dismissal
of a plaintiff's claims where he has failed to prosecute
those claims, comply with the Federal Rules of Civil
Procedure or local rules, or follow a court order.
Fed.R.Civ.P. 41(b); see also Coleman, 433 Fed.Appx.
at 718; Sanders v. Barrett, No. 05-12660, 2005 WL
2640979, at *1 (11th Cir. Oct. 17, 2005) (citing Kilgo v.
Ricks, 983 F.2d 189, 192 (11th Cir. 1993)); cf.
Local R. 41.1(b) (“[T]he assigned Judge may, after
notice to counsel of record, sua sponte . . .
dismiss any action for want of prosecution, with or without
prejudice[, ] . . . [based on] willful disobedience or
neglect of any order of the Court.” (emphasis
omitted)). Additionally, a district court's “power
to dismiss is an inherent aspect of its authority to enforce
its orders and ensure prompt disposition of lawsuits.”
Brown v. Tallahassee Police Dep't, 205 Fed.Appx.
802, 802 (11th Cir. 2006) (quoting Jones v. Graham,
709 F.2d 1457, 1458 (11th Cir. 1983)).
true that dismissal with prejudice for failure to prosecute
is a “sanction . . . to be utilized only in extreme
situations” and requires that a court “(1)
conclud[e] a clear record of delay or willful contempt
exists; and (2) mak[e] an implicit or explicit finding that
lesser sanctions would not suffice.” Thomas v.
Montgomery Cty. Bd. of Educ., 170 Fed.Appx. 623, 625-26
(11th Cir. 2006) (quoting Morewitz v. West of Eng. Ship
Owners Mut. Prot. & Indem. Ass'n (Lux.), 62 F.3d
1356, 1366 (11th Cir. 1995)); see also Taylor v.
Spaziano, 251 Fed.Appx. 616, 619 (11th Cir. 2007)
(citing Morewitz, 62 F.3d at 1366). By contrast,
dismissal without prejudice for failure to prosecute
is not an adjudication on the merits, and, therefore, courts
are afforded greater discretion in dismissing claims in this
manner. Taylor, 251 Fed.Appx. at 619; see also
Coleman, 433 Fed.Appx. at 719; Brown, 205
Fed.Appx. at 802-03.
the Court exercises its discretion to dismiss cases with
caution, dismissal of this action without prejudice is
warranted. See Coleman, 433 Fed.Appx. at 719
(upholding dismissal without prejudice for failure to
prosecute Section 1983 complaint, where plaintiff did not
respond to court order to supply defendant's current
address for purpose of service); Taylor, 251
Fed.Appx. at 620-21 (upholding dismissal without prejudice
for failure to prosecute, because plaintiffs insisted on
going forward with deficient amended complaint rather than
complying, or seeking an extension of time to comply, with
court's order to file second amended complaint);
Brown, 205 Fed.Appx. at 802-03 (upholding dismissal
without prejudice for failure to prosecute Section 1983
claims, where plaintiff failed to follow court order to file
amended complaint and court had informed plaintiff that
noncompliance could lead to dismissal).
Federal Rule of Civil Procedure Rule 4(m) mandates that the
Court dismiss a complaint when a plaintiff fails to effect
service within 90 days of the filing of the complaint. A
plaintiff may request an extension of time for service of
process upon the showing of good cause. Fed.R.Civ.P. 4(m). A
plaintiff has the burden of demonstrating the existence of
“good cause” justifying service outside of the
deadline. Sanders v. Fluor Daniel, Inc., 151 F.R.D.
138, 139 (M.D. Fla. 1993). “To demonstrate good cause,
the plaintiff must offer evidence that she (1) has proceeded
in good faith; (2) has a reasonable basis for noncompliance
and (3) the basis for the delay was more than simple
inadvertence or mistake.” Durgin v. Mon, 659
F.Supp.2d 1240, 1258 (S.D. Fla. 2009), aff'd, 415
Fed.Appx. 161 (11th Cir. 2011) (per curiam) (citing
Sanders, 151 F.R.D at 139; Prisco v. Frank,
929 F.2d 603, 604 (11th Cir. 1991); Horenkamp v. Van
Winkle & Co., 402 F.3d 1129, 1130-31 (11th Cir.
Court has twice issued Orders directing Plaintiff to show
cause for their failure to timely serve the remaining
Defendants. Despite the Court's specific instructions,
Plaintiffs have failed to show cause, much less taken any
effort to comply with their service obligations. Accordingly,
the Court DISMISSES without prejudice
Plaintiffs Complaint for failure to prosecute, failure to
follow this Court's Orders, and failure to timely serve
foregoing reasons, the Court DISMISSES without
prejudice Plaintiffs Complaint and
DIRECTS the Clerk of Court to
CLOSE this case.