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Mercer v. Bulloch County Board of Commissioners

United States District Court, S.D. Georgia, Statesboro Division

January 23, 2019

VICTOR JERMAINE MERCER; and BERNIESHA SHARIECE COOPER, Plaintiffs,
v.
BULLOCH COUNTY BOARD OF COMMISSIONERS; LYNN M. ANDERSON, in his previous official capacity as Sheriff of Bulloch County, Georgia; SGT KENT MUNSEY, in his individual and official capacity; OFFICER JARED SHABABY, in his individual and official capacity; and APO KYLE BRILEY, in his individual and official capacity, Defendants.

          ORDER

          R. STAN BAKER, UNITED STATES DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA

         This 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. 4.) The Court DISMISSES this action WITHOUT PREJUDICE for Plaintiffs' 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. Though this dismissal is without prejudice, should Plaintiffs' counsel seek to refile this case, [1] he must file contemporaneously with the complaint an explanation of cause for his failure to serve this action in a timely manner and his failure to respond to the Court's September 25, 2018 Order.

         BACKGROUND

         The 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 twenty-one months ago, Plaintiffs failed to properly serve any of the Defendants. In its Court's September 25, 2018 Order, the Court ordered Plaintiffs to show cause for their failure to timely serve Defendants. (Id. at p. 2.) Plaintiffs have made no response to that Order or taken any other action in this case since that Order.

         DISCUSSION

         A 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);[2] 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)).

         It is 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.

         While 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).

         Moreover, 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. 2005)).

         This Court directed Plaintiffs to show cause for their failure to timely serve 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 their Complaint.

         CONCLUSION

         For the foregoing reasons, the Court DISMISSES without prejudice Plaintiff's Complaint and DIRECTS the Clerk of Court to CLOSE this case. Though this dismissal is without prejudice, should Plaintiffs' counsel seek to refile this case, he must file contemporaneously with the complaint an explanation of cause for his failure to serve this action in a timely manner and his failure to respond to the Court's September 25, 2018 Order.

         SO ...


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