Roderick v. Hartford Insurance Company of the Midwest

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ALLISON M. RODERICK,

Plaintiff,

v. Case No.: 2:23-cv-1169-SPC-NPM

HARTFORD INSURANCE

COMPANY OF THE MIDWEST,

Defendant.

OPINION AND ORDER

This Hurricane Ian-related insurance dispute is before the Court sua

sponte. On November 27, 2024, Defendant Hartford Insurance Company of the

Midwest filed its Motion for Summary Judgment. (Doc. 56). Plaintiff Allison

M. Roderick did not file a response in opposition to the motion or request an

extension of time to do so. So on December 23, 2024, the Court issued an Order

to Show Cause by December 30, 2024, warning her that under Local Rule

3.01(c), “[i]f a party fails to timely respond, the motion is subject to treatment

as unopposed.” (Doc. 57). The Court observed that “it does not appear Plaintiff

is diligently prosecuting this action or opposing adverse judgment” and

cautioned Plaintiff that “[f]ailure to comply with this Order may result in the

dismissal of this action without further notice.” (Id. (citing M.D. Fla. L.R.

3.10). Nonetheless, Plaintiff failed to respond to the Order to Show Cause or

request an extension of time to do so.

Under these circumstances, the Court considers whether dismissal of

this case is appropriate. It is. First, Local Rule 3.10 of the United States

District Court for the Middle District of Florida provides 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.” Further, Federal Rule of Civil Procedure 41(b) provides:

If the plaintiff fails to prosecute or to comply with these

rules or a court order, a defendant may move to dismiss the

action or any claim against it. Unless the dismissal order

states otherwise, a dismissal under this subdivision (b) and

any dismissal not under this rule—except one for lack of

jurisdiction, improper venue, or failure to join a party

under Rule 19—operates as an adjudication on the merits.

Fed. R. Civ. P. 41(b). The Supreme Court has explained that dismissal under

Rule 41(b) does not require a motion from a defendant. See Link v. Wabash R.

Co., 370 U.S. 626, 630 (1962) (rejecting argument that Rule 41(b) prohibits

involuntary dismissals for failure of plaintiff to prosecute except on motion by

defendant). Rather, “[t]he authority of a court to dismiss sua sponte for lack

of prosecution has generally been considered an inherent power, governed not

by rule or statute but by the control necessarily vested in courts to manage

their own affairs so as to achieve the orderly and expeditious disposition of

cases.” Id. (cleaned up).

Here, Plaintiff is represented by counsel, who is still active on the docket

and thus received electronic notice of both the motion for summary judgment

and the Order to Show Cause. (Docs. 56, 57). But Plaintiff’s counsel did not

respond to either filing, much less show “due diligence and just cause for

delay.” In the Eleventh Circuit, a district court “may dismiss a claim if the

plaintiff fails to prosecute it or comply with a court order.” Equity Lifestyle

Props., Inc. v. Fla. Mowing And Landscape Serv., Inc., 556 F.3d 1232, 1240

(11th Cir. 2009) (citing Fed. R. Civ. P. 41(b)). Given Plaintiff’s failure to

respond to the Order to Show Cause, dismissal is appropriate. The only

question is whether dismissal should be with or without prejudice.

Dismissal with prejudice for failure to prosecute is a “sanction . . . to be

utilized only in extreme situations” and requires that a court “(1) conclude a

clear record of delay or willful contempt exists; and (2) make an implicit or

explicit finding that lesser sanctions would not suffice.” Thomas v.

Montgomery Cnty. Bd. of Educ., 170 F. App’x 623, 625–26 (11th Cir. 2006)

(cleaned up) (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 F. App’x 616, 619 (11th Cir. 2007) (citation omitted). 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. See Taylor, 251 F. App’x at

619.

This Court carefully exercises its discretion to dismiss cases and—while

this case is a close call as to dismiss this case with prejudice because Plaintiff

has failed to respond whatsoever to two filings—concludes that dismissal of

this action without prejudice is warranted. See Coleman v. St. Lucie Cnty.

Jail, 433 F. App’x 716, 719 (11th Cir. 2011) (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 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

v. Tallahassee Police Dep’t, 205 F. App’x 802, 802–03 (11th Cir. 2006)

(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).

While Plaintiff’s lack of diligence is disturbing, on balance, this is not the type

of “extreme situation” warranting dismissal with prejudice.

Thus, this case is dismissed under the Court’s inherent authority and

Rule 41(b) for Plaintiffs failure to comply with the Court’s Order to Show

Cause and for want of prosecution.

Accordingly, it is now

ORDERED:

This case is DISMISSED without prejudice. The Clerk is

DIRECTED to enter judgment, terminate all pending motions or deadlines,

and close the file.

DONE and ORDERED in Fort Myers, Florida on January 7, 2025.

, Lh platralh< 3

UNITED STATES DISTRICTJUDGE

Copies: All Parties of Record