The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NICOLE RENELLE MALICK-
WIMMER,
Plaintiff,
v. Case No.: 2:20-cv-885-JES-MRM
DEREK PAUL WIMMER, MARY
COSMO, STATE OF FLORIDA and
TWENTIETH JUDICIAL CIRCUIT,
Defendants.
/
REPORT AND RECOMMENDATION
This matter comes before the Undersigned sua sponte upon review of the
docket. Plaintiff,1 an attorney proceeding pro se, has failed to comply with or respond
to several of this Court’s Orders despite being specifically warned that such failure
may result in the dismissal of her action. Thus, upon review of the docket and for
the reasons stated herein, the Undersigned recommends that Plaintiff’s Petition for
1 Notably, Nicole Renelle Malick-Wimmer refers to herself as Petitioner in her first
filing and identifies Derek Paul Wimmer, Mary Cosmo, the State of Florida, and the
Twentieth Judicial Circuit as Respondents. (See Doc. 1). However, Derek Paul
Wimmer, Mary Cosmo, the State of Florida, and the Twentieth Judicial Circuit have
characterized themselves as Defendants and identified Nicole Renelle Malick-
Wimmer as Plaintiff. (See Docs. 18, 20, 21). For the sake of clarity and simplicity,
and without determining the appropriateness of one designation over another, the
Undersigned refers to Nicole Renelle Malick-Wimmer as Plaintiff and Derek Paul
Wimmer, Mary Cosmo, the State of Florida, and the Twentieth Judicial Circuit as
Defendants.
Writ of Mandamus, Prohibition, and Quo Warranto (Doc. 1) be DISMISSED
without prejudice.
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)).2 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 continued 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
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
2 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.
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)).
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.” M.D. Fla. R. 3.10.
ANALYSIS
While dismissal for failure to prosecute is a harsh sanction, the Undersigned
can only conclude that Plaintiff’s failure to comply timely with this Court’s prior
Orders and to heed the Court’s instructions is willful. See McKelvey, 789 F.2d at
1520.
Specifically, on June 28, 2021, the Court noticed this action for a Preliminary
Pretrial Conference set for August 17, 2021, before the Undersigned. (Doc. 25).
Additionally, the Court ordered the parties to file a joint Case Management Report
no later than August 5, 2021. (Id.). In connection with the Case Management
Report and Preliminary Pretrial Conference, on July 1, 2021, the Court entered the
Order Governing Preliminary Pretrial Conference, which states:
Sanctions for Failing to Comply: Counsel of record and
any pro se litigant appearing in the case must comply fully
with the requirements and deadlines set forth in the hearing notice
(see Doc. 25), the Civil Action Order, and this Order. Any
failure to comply—including but not limited to any failure to
file a Case Management Report by the deadline specified in the
notice or any failure by counsel or by a pro se litigant to appear as
directed for the Preliminary Pretrial Conference––may result in
the imposition of sanctions under Fed. R. Civ. P. 16(f) or
other relevant authority. Unless the Court cancels or
reschedules the Preliminary Pretrial Conference in writing
and on the docket, the parties should assume that the
hearing will occur on the date and at the time specified in
the notice.
(Doc. 28 at 1-2 (emphasis added)).
Then, on August 4, 2021, following a notice of non-compliance, (see Doc. 32),
the Court entered a Text Order permitting the parties to each file unilateral Uniform
Case Management Reports and warning Plaintiff that “any further refusal to meet
her obligations in this case may result in the imposition of sanctions, including but
not limited to the dismissal of the action,” (Doc. 33).
Thereafter, on August 16, 2021, the Court entered a Text Order to Show
Cause (1) noting that while Defendant Cosmo had appeared in the action as counsel
for Defendant Derek Paul Wimmer, Defendant Cosmo had not appeared in her
capacity as a Defendant and (2) requiring Plaintiff to show cause why the action
should not be dismissed for failure to prosecute as to Defendant Cosmo based on the
lack of an appropriate motion seeking a clerk’s default or an extension of time to
complete service. (Doc. 38). Plaintiff failed to comply with this Order.
On August 17, 2021, the Undersigned convened the duly noticed Preliminary
Pretrial Conference. (See Docs. 25, 41, 47). Plaintiff failed to appear at the hearing
despite (1) the Court’s attempt to contact her before proceeding, (2) the June 28,
2021 Notice of Hearing mailed to Plaintiff, and (3) the July 1, 2021 Order Governing
Preliminary Pretrial Conference warning Plaintiff that failure to appear at the
Preliminary Pretrial Conference as ordered may result in sanctions. (See Docs. 28,
41, 47). In fact, before the start of the hearing, when the Courtroom Deputy Clerk
called the telephone number provided by Plaintiff in her Petition for Writ of
Mandamus, Prohibition, and Quo Warranto, (Doc. 1 at 1), (832) 995-8889, an
individual answered the phone, but then hung up, (Doc. 47). Accordingly, during
the hearing, the Undersigned construed Plaintiff’s conduct as a willful refusal to join
the hearing as ordered. (Doc. 47).
Thus, the Court entered an Order to Show Cause requiring Plaintiff to show
good cause in writing as to why (1) she failed to file a Case Management Report as
required, (2) she failed to appear at the duly noticed Preliminary Pretrial Conference,
and (3) the Court should not impose sanctions, including but not limited to
reimbursement of opposing counsel’s fees for time incurred preparing for and
attending the hearing or dismissal of the action. (Doc. 39 at 2). Additionally, the
Court warned that:
Any failure to comply fully and meaningfully with this
Order by [August 30, 2021,] will result in the Court, without
further notice: [(1)] entering a second order to show cause;
and [(2)] entering an order imposing sanctions and may also
result in the Undersigned recommending that this action be
dismissed for failure to prosecute.
(Id.). Again, Plaintiff failed to comply with the Court’s Order.
Accordingly, on September 9, 2021, the Court entered an Order requiring
Plaintiff to show good cause as to: (1) why she failed to comply with this Court’s
prior Orders to Show Cause; and (2) why this action should not be dismissed for
failure to prosecute as to all Defendants. (Doc. 48 (citing Docs. 38, 39)).
Additionally, the Court warned Plaintiff: “[f]ailure to respond to this Order will
result in the Undersigned recommending to the presiding United States District
Judge that the action be dismissed as to all Defendants for failure to prosecute.”
(Id.). For a third time, Plaintiff failed to comply with or respond to the Court’s
Order.
In sum, Plaintiff failed to respond to or comply with: (1) the Court’s June 28,
2021 Notice of Hearing requiring the parties to file a joint Case Management Report
and attend the Preliminary Pretrial Conference, (Doc. 25; see also Docs. 28, 33); (2)
the Court’s July 1, 2021 Order Governing Preliminary Pretrial Conference, (Doc.
28), which reiterated Plaintiff’s obligations in connection with the Preliminary
Pretrial Conference; (3) the Court’s August 4, 2021 Order requiring Plaintiff to file a
Case Management Report, (Doc. 33); (4) the Court’s August 16, 2021 Text Order to
Show Cause requiring Plaintiff to file an appropriate motion regarding Defendant
Cosmo’s lack of an appearance in the action, (Doc. 38; see also Doc. 47); (5) the
Court’s August 17, 2021 Order to Show Cause requiring Plaintiff to show good cause
for her failure to attend the duly noticed Preliminary Pretrial Conference, (Doc. 39);
and (6) the Court’s September 9, 2021 Text Order to Show Cause requiring Plaintiff
to respond to the Court’s prior Orders, (Doc. 48). Moreover, Plaintiff failed to
respond despite the Court’s unambiguous warnings of potential dismissal. (See Docs.
28, 33, 38, 39, 48).
The Undersigned can only find that Plaintiff’s failure to comply with this
Court’s repeated Orders is willful.
Notably, a dismissal without prejudice amounts to a dismissal with prejudice
if the statute of limitations 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)). Notwithstanding any potential risk that Plaintiff’s claims may
be barred by statutes of limitations, the Undersigned recommends dismissal without
prejudice so Plaintiff can re-assert any claim not barred by a statute of limitations.
Additionally, any risk that Plaintiff’s claims may be barred by statutes of limitations
does not overcome the Undersigned’s finding that dismissal is appropriate in light of
the above finding that Plaintiff’s repeated failures to comply with the Court’s Orders
were willful.
Moreover, the Undersigned finds that lesser sanctions will not suffice. The
instant litigation has been ongoing for nearly a year, Plaintiff’s conduct has
necessitated multiple motions and Orders (see, e.g., Docs. 22, 30, 31, 32, 33, 38, 39,
40, 48), and Plaintiff’s refusal to engage in the prosecution of her case has frustrated
the Court’s ability to engagement in effective case management consistent with Rule
16 and has caused an unacceptable delay in the resolution of the action. The Court
has directly ordered Plaintiff to comply with her obligations in this case multiple
times and Plaintiff has entirely ignored those Orders. (See, e.g., Docs. 22, 25, 28, 33,
38, 39, 42, 47, 48). Moreover, several of those Orders expressly warned that failure
to comply may result in dismissal of Plaintiff’s claims. (See, e.g., Docs. 28, 33, 38, 39,
48). If the express warning of the potential for dismissal for failure to prosecute is
insufficient to convince Plaintiff to actively prosecute her case and comply with
Court Orders, the Undersigned finds that any lesser sanction is highly unlikely to
secure Plaintiff’s compliance.
Accordingly, because Plaintiff’s noncompliance with the Court’s Orders has
been willful and because lesser sanctions would be ineffective, the Undersigned
recommends that Plaintiff’s case be dismissed without prejudice.
Additionally, by failing to respond whatsoever to the Court’s Orders to show
cause, Plaintiff has also failed to demonstrate due diligence and just cause for her
delay as required by Local Rule 3.10. See M.D. Fla. R. 3.10. Thus, dismissal is
appropriate. See id.
CONCLUSION
Accordingly, the Undersigned RESPECTFULLY RECOMMENDS that
Plaintiff’s Petition for Writ of Mandamus, Prohibition, and Quo Warranto (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 October 7, 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