“While dismissal is an extraordinary remedy, dismissal upon disregard of an order, especially where the litigant has been forewarned, generally is not an abuse of discretion.”
How later courts described this case
- “While dismissal is an extraordinary remedy, dismissal upon disregard of an order, especially where the litigant has been forewarned, generally is not an abuse of discretion.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JIMMY LEE ROBERTS, )
)
Plaintiff, )
)
v. ) CASE NO. 2:21-cv-834-MHT-JTA
)
WALTON ENTERPRISES, )
)
Defendant. )
RECOMMENDATION OF THE MAGISTRATE JUDGE
Defendant Walton Enterprises filed a notice in this court to remove the action filed
by Plaintiff Jimmy Lee Roberts in the Montgomery County Circuit Court (Case No. 03-
CV-2021-00469). (Doc. No. 1.) Defendant then filed a Motion to Dismiss Plaintiff’s
action for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to
state a claim for which relief can be granted. (Doc. No. 4.) This action was referred to the
undersigned for consideration and disposition or recommendation on all pretrial matters as
may be appropriate pursuant to 28 U.S.C. § 636. (Doc. No. 3.)
On January 12, 2022, this court ordered Plaintiff to show cause, on or before January
28, 2022, why Defendant’s motion should not be granted. (Doc. No. 7.) In said Order,
Plaintiff was cautioned that his failure to comply with the directives of that Order would
result in a Recommendation by the undersigned that this case be dismissed without
prejudice for his failure to comply with the order. (Id. at 1.) There is nothing before the
court indicating this Order failed to reach Plaintiff.
The time allowed for Plaintiff to respond to Defendant’s motion to dismiss expired
on January 28, 2022. (Id.) To date, Plaintiff has not filed a response, sought an extension,
or otherwise complied with the Order of the court.
A federal district court has the inherent power to dismiss a case sua sponte for failure
to prosecute or obey a court order. See, e.g., Link v. Wabash R.R. Co., 370 U.S. 626, 629–
30 (1962); Fed. R. Civ. P. 41(b). 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 follow a court order. Fed. R. Civ. P. 41(b). See
also Coleman v. St. Lucie Cnty. Jail, No. 11–10518, 433 F. App’x 716, 718 (11th Cir.
2011); 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)). 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, No. 06-13131,
205 F. App’x 802, 802 (11th Cir. 2006) (quoting Jones v. Graham, 709 F.2d 1457, 1458
(11th Cir. 1983)). See also Mingo v. Sugar Cane Growers Co-Op of Fla., 864 F.2d 101,
102 (11th Cir. 1989) (holding that “[t]he district court possesses the inherent power to
police its docket”).
While the court exercises its discretion to dismiss cases with caution, dismissal of
this action without prejudice is warranted. See Coleman, 433 F. App’x at 719 (upholding
dismissal without prejudice for failure to prosecute § 1983 complaint where plaintiff did
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not respond to court order to supply defendant's current address for purpose of service);
Taylor, 251 F. App’x 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 F. App’x at 802–03 (upholding dismissal without
prejudice for failure to prosecute § 1983 claims where plaintiff failed to follow court order
to file amended complaint and court had informed plaintiff that noncompliance could lead
to dismissal). Here, Plaintiff failed to follow this court’s Order despite having ample
opportunity to do so and being forewarned of the consequences of his failure to do so. See
Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (“While dismissal is an
extraordinary remedy, dismissal upon disregard of an order, especially where the litigant
has been forewarned, generally is not an abuse of discretion.”) (citation omitted).
Consequently, the undersigned Magistrate Judge RECOMMENDS this case be
DISMISSED without prejudice.
It is further ORDERED that on or before February 22, 2022, Plaintiff may file an
objection to the Recommendation. Plaintiff must specifically identify the factual findings
and legal conclusions in the Recommendation to which he objects. Plaintiff is advised that
frivolous, conclusive, or general objections will not be considered. This Recommendation
is not a final order and, therefore, it is not appealable.
3
Failure to file a written objection to the Magistrate Judge’s findings and
recommendations in accordance with the provisions of 28 U.S.C. § 636(b)(1) shall bar a
party from a de novo determination by the District Court of legal and factual issues covered
in the Recommendation and waives the right of the party to challenge on appeal the district
court’s order based on unobjected-to factual and legal conclusions accepted or adopted by
the District Court except upon grounds of plain error or manifest injustice. 11th Cir. R. 3-
1; see Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir.
1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
DONE this 4th day of February, 2022.
UNIZED STATES MAGISTRATE JUDGE