“The court may dismiss an action sua sponte under [Federal Rule of Civil Procedure 41(b)] for failure to prosecute or failure to obey a court order.”
How later courts described this case
- “The court may dismiss an action sua sponte under [Federal Rule of Civil Procedure 41(b)] for failure to prosecute or failure to obey a court order.”
- “[D]ismissal 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
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
JOSEPH CLARK,
Plaintiff,
v. Case No. 3:24cv477-TKW-HTC
BRADLEY A. BRISTOW,
Defendant.
________________________/
REPORT AND RECOMMENDATION
Plaintiff Joseph Clark, proceeding pro se and in forma pauperis, filed an
amended civil complaint against Defendant Bradley A. Bristow, asserting claims of
libel per-se and slander per-se. Doc. 6. Although the United States Marshals Service
served Bristow with the summons and complaint on January 7, 2025 (Doc. 16), there
has been no other activity in this case since that date. Thus, on March 3, 2025, the
Court ordered Clark to show cause within fourteen (14) days why this case should
not be dismissed for his failure to prosecute. Doc. 17. The Court warned Clark that
his failure to comply with the March 3 order could result in a recommendation that
this case be dismissed. Id. Clark did not respond to the Court’s Order.
Based on the foregoing, dismissal of this case is appropriate for two reasons.
First, Clark failed to respond to the show cause order. See Moon v. Newsome, 863
F.2d 835, 837 (11th Cir. 1989) (“[D]ismissal upon disregard of an order, especially
where the litigant has been forewarned, generally is not an abuse of discretion.”)
(citations omitted). Second, Clark has failed to prosecute this action by timely
seeking a clerk’s default or default judgment. See Brown v. Tallahassee Police Dep’t,
205 F. App’x 802, 802 (11th Cir. 2006) (“The court may dismiss an action sua sponte
under [Federal Rule of Civil Procedure 41(b)] for failure to prosecute or failure to
obey a court order.”) (citations omitted); Birmingham v. RoFx.net, No. 21-23472-
CIV, 2022 WL 19406163, at *2 (S.D. Fla. May 17, 2022) (“If the Plaintiffs fail to
timely seek a Clerk’s default or a default judgment, the Court may dismiss this action
as to such Defendant, without prejudice, for failure to prosecute.”).
Accordingly, it is RECOMMENDED:
1. That this case be DISMISSED WITHOUT PREJUDICE due to Clark’s
failure to prosecute and failure to comply with Court orders.
2. That the clerk close the file.
At Pensacola, Florida, this 27th day of March, 2025.
/s/ Hope Thai Cannon
HOPE THAI CANNON
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within
fourteen (14) days of the date of the Report and Recommendation. Any different
deadline that may appear on the electronic docket is for the court’s internal use only
and does not control. An objecting party must serve a copy of its objections upon
all other parties. A party who fails to object to the magistrate judge’s findings or
recommendations contained in a report and recommendation waives the right to
challenge on appeal the district court’s order based on the unobjected-to factual and
legal conclusions. See 11th Cir. Rule 3-1.