The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANTHONY WILSON, on behalf of
himself and others similarly situated,
Plaintiff,
v. Case No.: 2:21-cv-362-JLB-MRM
STEVE’S PAINTING INC. and
STEVEN BLAIR,
Defendants.
/
REPORT AND RECOMMENDATION
This matter comes before the Court sua sponte. Upon review of the docket and
for the reasons herein, the Undersigned recommends that the Collective Action
Complaint and Demand for Jury Trial (“Complaint”) (Doc. 1) be DISMISSED
without prejudice.
BACKGROUND
A brief procedural history of this case is instructive. On May 5, 2021, Plaintiff
filed a one-count Complaint, alleging that Defendants violated the Fair Labor
Standards Act. (Doc. 1). On May 27, 2021, Defendants filed an Answer and
Affirmative Defenses, denying Plaintiff’s allegations and asserting three affirmative
defenses. (Doc. 12).
On August 30, 2021, Plaintiff’s former counsel, Mr. Noah E. Storch and Mr.
Alexander Harne, sought to withdraw as the attorneys of record for Plaintiff. (Doc.
22). That same day, the Court granted the motion, permitted Mr. Storch and Mr.
Harne to withdraw, and directed Plaintiff to either (1) retain new counsel and have
counsel file a notice of appearance in this case or (2) file an appropriate notice with
the Court stating that he intends to proceed pro se no later than September 13, 2021.
(Doc. 23 at 3). Additionally, because Plaintiff’s Answers to the Court’s
Interrogatories were due on August 30, 2021, the Court sua sponte extended the
deadline for Plaintiff to file his Answers to the Court’s Interrogatories to September
13, 2021. (Id. at 2). The Court ordered Plaintiff to file his Answers to the Court’s
Interrogatories no later than September 13, 2021. (Id. at 3). The Court warned
Plaintiff that “[a]ny failure to comply with this Order may subject the offending
party(ies) to dismissal, default, or other sanctions, as appropriate.” (Id. at 3
(emphasis omitted)). A copy of the Order was mailed to Plaintiff at his service
address. (See id.).
When Plaintiff failed to comply with the August 30, 2021 Order, the Court
entered an Order to show cause on September 14, 2021, requiring Plaintiff to show
good cause as to why this action should not be dismissed for failure to comply with
the Court’s August 30, 2021 Order. (Doc. 24). The Court ordered Plaintiff to
respond to the Order and either (1) retain new counsel and have counsel file a notice
of appearance in this case or (2) file an appropriate notice with the Court stating that
he intends to proceed pro se no later than September 28, 2021. (Id. at 2).
Additionally, the Court ordered Plaintiff to file his Answers to the Court’s
Interrogatories no later than September 28, 2021. (Id. at 2). The Court warned that
“[f]ailure to respond to or otherwise comply with this Order may result in the
Undersigned recommending to the presiding United States District Judge that the
action be dismissed.” (Id. at 3 (emphasis omitted)). A copy of the Order was mailed
to Plaintiff at his service address. (See id.).
Plaintiff failed to comply with the Court’s September 14, 2021 Order to show
cause.
LEGAL STANDARD
The decision to dismiss for want of prosecution is within the Court’s
discretion. See McKelvey v. AT & T Techs., Inc., 789 F.2d 1518, 1520 (11th Cir. 1986)
(citing Martin-Trigona v. Morris, 627 F.2d 680, 682 (5th Cir. 1980)).1 The Eleventh
Circuit has held, however, that “the severe sanction of dismissal – with prejudice or
the equivalent thereof – should be imposed ‘only in the face of a clear record of delay
or contumacious conduct by the plaintiff.’” Id. (citing Martin-Trigona, 627 F.2d at
682). The Eleventh Circuit observed that “such dismissal is a sanction of last resort,
applicable only in extreme circumstances, and generally proper only where less
drastic sanctions are unavailable.” Id. (citing Searock v. Stripling, 736 F.2d 650, 653
(11th Cir. 1984); E.E.O.C. v. Troy State Univ., 693 F.2d 1353, 1354, 1358 (11th Cir.
1982)). The Court further held that “[a] finding of such extreme circumstances
1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit Court of Appeals adopted as binding precedent all the decisions of
the former Fifth Circuit handed down prior to the close of business on September 30,
1981.
necessary to support the sanction of dismissal must, at a minimum, be based on
evidence of willful delay; simple negligence does not warrant dismissal.” Id. (citing
Searock, 736 F.2d at 653; Troy State, 693 F.2d at 1354, 1357). Nevertheless, if the
Court dismisses the action without prejudice, the standard is less stringent “because
the plaintiff would be able to file [the] suit again.” Brown v. Blackwater River Corr.
Facility, 762 F. App’x 982, 985 (11th Cir. 2019) (alteration in original) (quoting
Boazman v. Econ. Lab., Inc., 537 F.2d 210, 212-13 (5th Cir. 1976)).
A dismissal without prejudice, however, amounts to a dismissal with prejudice
if the statute of limitation bars the plaintiff from refiling the complaint. See Perry v.
Zinn Petroleum Cos., LLC, 495 F. App’x 981, 984 (11th Cir. 2012) (citing Burden v.
Yates, 644 F.2d 503, 505 (5th Cir. 1981); Boazman v. Econ. Lab., Inc., 537 F.2d 210,
213 (5th Cir.1976)).
Additionally, Local Rule 3.10 states that “[a] plaintiff’s failure to prosecute
diligently can result in dismissal if the plaintiff in response to an order to show cause
fails to demonstrate due diligence and just cause for delay.”
ANALYSIS
While dismissal for failure to prosecute is a harsh sanction, the Undersigned
can only conclude that Plaintiff’s failure here to comply timely with the Court’s
Orders and to heed the Court’s instructions is willful. See McKelvey, 789 F.2d at
1520. Specifically, when the Court permitted Plaintiff’s counsel to withdraw, the
Court ordered Plaintiff to either (1) retain new counsel and have counsel file a notice
of appearance in this case or (2) file an appropriate notice with the Court stating that
he intends to proceed pro se, which is without the benefit of counsel no later than
September 13, 2021. (Doc. 23 at 3). Additionally, the Court ordered Plaintiff to file
his Answers to the Court’s Interrogatories no later than September 13, 2021. (Id.).
The Court warned Plaintiff that “[a]ny failure to comply with this Order may subject
the offending party(ies) to dismissal, default, or other sanctions, as appropriate.” (Id.
(emphasis omitted)). A copy of the Order was mailed to Plaintiff at his service
address. (See id.).
Plaintiff, however, failed to comply with the Order despite the Court’s
warning. Accordingly, the Court ordered Plaintiff to show good cause as to why this
action should not be dismissed for Plaintiff’s failure to comply with the August 30,
2021 Order. (Doc. 24 at 1-3). The Court warned that “[f]ailure to respond to or
otherwise comply with this Order may result in the Undersigned recommending to
the presiding United States District Judge that the action be dismissed.” (Id. at 3
(emphasis omitted)). A copy of the Order was again mailed to Plaintiff at his service
address. (See id.). Again, Plaintiff failed to comply with or otherwise respond to that
Order despite the Court’s explicit warning.
Because the Undersigned cannot find Plaintiff’s failure to comply with the
Court’s Orders – especially in light of the Court’s express warnings, including that
“[f]ailure to respond to or otherwise comply with [the show cause] Order may result
in the Undersigned recommending to the presiding United States District Judge that
the action be dismissed,” (Doc. 24 at 3; see also Doc. 23 at 3) – is anything but willful,
dismissal is warranted.
Additionally, by failing to respond whatsoever to the Order to show cause,
Plaintiff has also failed to demonstrate due diligence and just cause for his delay as
required by Local Rule 3.10. See M.D. Fla. R. 3.10. Thus, dismissal is appropriate.
See id.
The Undersigned notes, however, that the statute of limitations may have
lapsed as to some or all of Plaintiff’s claims. (See Doc. 1). Thus, a dismissal without
prejudice would effectively amount to a dismissal with prejudice as to those claims.
See Perry, 495 F. App’x at 984 (citations omitted). Notwithstanding the risk that
certain claims may be barred by the statute of limitations, the Undersigned finds
dismissal appropriate in light of the above finding that Plaintiff’s failure to comply
with the Court’s Orders was willful. See McKelvey, 789 F.2d at 1520. Nevertheless,
the Undersigned recommends the less drastic sanction of dismissing the Complaint
without prejudice, allowing Plaintiff to refile the action as to any claim not barred by
the statute of limitations.
Alternatively, if – in light of the risk that some claims may be barred by the
statute of limitations or in light of the collective action included in the Complaint –
the presiding United States District Judge finds that justice would best be served by
giving Plaintiff a final opportunity to comply with the Court Orders before
dismissing the action, the Undersigned recommends that the District Judge
recommit this matter to the Undersigned for issuance of a further show cause order
and further proceedings, as needed.
CONCLUSION
For the reasons set forth above, the Undersigned RESPECTFULLY
RECOMMENDS that Plaintiff's Collective Action Complaint and Demand for Jury
Trial (Doc. 1) be DISMISSED without prejudice for failure to comply with the
Court’s Orders and failure to prosecute.
RESPECTFULLY RECOMMENDED in Chambers in Ft. Myers, Florida
on September 30, 2021.
Mac R. MA
United States Magistrate Judge
NOTICE TO PARTIES
A party has fourteen days from the date the party is served a copy of this
Report and Recommendation to file written objections to the Report and
Recommendation’s factual findings and legal conclusions. 28 U.S.C. § 636(b)(1)(C).
A party’s failure to file written objections waives that party’s right to challenge on
appeal any unobjected-to factual finding or legal conclusion the district judge adopts
from the Report and Recommendation. See 11th Cir. R. 3-1. A party wishing to
respond to an objection may do so in writing fourteen days from the date the party is
served a copy of the objection. The parties are warned that the Court will not extend
these deadlines. To expedite resolution, the parties may also file a joint notice
waiving the fourteen-day objection period.
Copies furnished to:
Counsel of Record
Unrepresented Parties