Calhoun

FOR THE NORTHERN DISTRICT OF ALABAMA

JASPER DIVISION

FRANCES CALHOUN, }

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Plaintiff, }

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v. } Case No.: 6:24-cv-01606-RDP

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CRACKER BARREL OLD COUNTRY }

STORE NO. 712 et al., }

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Defendants. }

MEMORANDUM OPINION AND ORDER

This matter is before the court on Plaintiff’s Motion for Reconsideration. (Doc. # 21). The

Motion has been fully briefed. (Doc. # 21, 22, 23). For the reasons discussed below, the Motion is

due to be denied.

I. Background

This case was filed on July 2, 2024 by the Lento Law Group (“LLG”) on behalf of Plaintiff

Frances Calhoun in the Circuit Court of Walker County, Alabama. (Doc. # 1-1). On November 11,

2024, Defendants Cracker Barrel Old Country Store, Inc. and Cracker Barrel Old Country Store

No. 712 removed the case to this court. (Doc. # 1). At some point after removal, but before the

filing of the parties’ Rule 26(f) report on January 13, 2025, Attorney John T. Fisher, Jr., (who then

worked at LLG), began representing Plaintiff. (Doc. # 5). After a scheduling conference with the

court, the case proceeded to discovery. (Doc. # 11).

On or around May 2, 2025, counsel for Defendants informally contacted the court

requesting a telephone conference to discuss a discovery dispute that had arisen between the

parties. The court set the case for a telephone conference on May 6, 2025. (Doc. # 13). However,

counsel for Plaintiff failed to appear for the telephone conference. (Doc. # 14 ¶¶ 1-2). That caused

continuing to represent Plaintiff in this matter. (Id. ¶ 4).

Attorney Fisher stated that following his termination, he was told by LLG that “the Clients

and contracts all belonged to LLG, [and] that LLG was responsible for contacting all clients and

informing them of LLG’s decision to terminate the contract.” (Id. ¶ 15). LLG also cut off Attorney

Fisher’s email, so he never received any communications about this case – whether from the court

or opposing counsel. Since his discharge from LLG, Attorney Fisher had not spoken to Plaintiff

(again, he was advised that he is not permitted “to reach out to or otherwise interfere with the

Attorney/Client Relationship, and the contractual business relationship between LLG and its

clients”). (Id. ¶ 22).

On May 13, 2025, Attorney Fisher filed a motion to withdraw from representing Plaintiff.

(Doc. # 14). In its May 19, 2025 Order granting the motion, the court required Attorney Fisher to

forward a copy of the Order to Plaintiff and LLG, and file a notice of compliance with the court.

(Doc. # 15). The court’s Order also stayed the case for sixty (60) days “to enable Plaintiff to seek

alternative counsel” at LLG or otherwise. (Id.). Further, LLG was ordered to show cause “on or

before May 30, 2025 as to why they have not violated any professional duties of responsibility

towards Plaintiff.” (Id. (emphasis in original)). Attorney Fisher complied with the court’s Order

and certified that he notified Plaintiff via mail and LLG via both mail and email. (Docs. # 16, 17).

To date, LLG has not complied with the court’s May 19, 2025 Show Cause Order.

Because Plaintiff never provided the court her address, it sent that order to LLG. (Doc. #

18). The court cannot say whether LLG gave notice to Plaintiff about the extension. It can say that

neither LLG nor Plaintiff made any appearance. On August 22, 2025, the court entered an Order

requiring Plaintiff to show cause “on or before September 22, 2025 why she has not appeared in

this case and why this case should not be dismissed without prejudice.” (Doc. # 18 (emphasis in

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in this action being dismissed for failure to prosecute.” (Id. (emphasis in original)). Again, as

neither Plaintiff, Fisher, or LLG ever provided the court with Plaintiff’s address, the Clerk of Court

mailed copies of the show cause order to LLG’s Arizona and New Jersey addresses. (Id.). After

receiving no response from Plaintiff or LLG, the court dismissed this case without prejudice for

want of prosecution. (Doc. # 19).

On October 31, 2025, Attorney Myesha Harrell of LLG appeared on Plaintiff’s behalf and

filed the instant Motion to Reconsider. (Doc. # 21).

II. Standard of Review

In support of her motion, Plaintiff relies on Federal Rule of Civil Procedure 6(b)(1)(B). (Id.

at ¶ 7). Rule 6(b)(1)(B) allows a court to extend time to act “on motion made after the time has

expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B).

However, a motion under Rule 6(b)(1)(B) is certainly improper when filed 155 days after the

court’s May 30, 2025 show cause deadline. Further, this case was dismissed without prejudice and

closed on September 24, 2025, and Rule 6(b)(1)(B) does not give the court the authority to set

aside a dismissal. Accordingly, the court considers Plaintiff’s motion under Rule 60(b)(1).

Rule 60(b)(1) provides that the court has discretion to “relieve a party or its legal

representative from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise,

or excusable neglect.” Fed. R. Civ. P. 60(b)(1). “To determine whether a movant’s neglect is

excusable, a court is required to engage in an equitable inquiry into ‘the particular circumstances

of the case.’” Oquendo v. United States, 541 F. App’x 954, 956 (11th Cir. 2013) (quoting Conn.

State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1355 (11th Cir. 2009) (citing

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993))). This requires

consideration of “(1) ‘the danger of prejudice to the [opposing party],’ (2) ‘the length of the delay

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it was within the reasonable control of the movant,’ and (4) ‘whether the movant acted in good

faith.’” Oquendo, 541 F. App’x at 956 (first quoting Cheney v. Anchor Glass Container Corp., 71

F.3d at 848, 850 (11th Cir. 1996), then quoting Pioneer Inv. Servs., 507 U.S. at 395).

III. Discussion

“District courts have inherent power to manage their dockets.” Brown v. Blackwater River

Corr. Facility, 762 F. App’x 982, 985 (11th Cir. 2019) (citing Betty K Agencies, Ltd. v. M/V

MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005). The Federal Rules of Civil Procedure “expressly

authorize a district court to dismiss a claim, including a counterclaim, or entire action for failure

to prosecute or obey a court order or federal rule.” State Exchange Bank v. Hartline, 693 F.2d

1350, 1352 (11th Cir. 1982); see Fed. R. Civ. P. 41(b-c). Additionally, a district court has “inherent

. . . authority to enforce its orders and ensure prompt disposition of legal actions.” State Exchange,

693 F.2d at 1352. A “district court need not tolerate defiance of reasonable orders.” Equity Lifestyle

Prop., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1241 (11th Cir. 2009).

In support of her motion for reconsideration, Plaintiff argues that dismissal under Rule

41(b) “is a severe sanction reserved for cases of willful delay or contumacious conduct.” However,

the willful delay/contumacious conduct standard is applied where a case was dismissed with

prejudice. Betty K. Agencies, Ltd., 432 F.3d at 1337. “The standard of review for dismissal without

prejudice is less stringent than that for dismissal with prejudice ‘because the plaintiff would be

able to file [the] suit again.’” Brown, 762 F. App’x 982, 985 (emphasis added) (quoting Boazman

v. Econ. Lab., Inc., 537 F.2d 210, 212–13 (5th Cir. 1976)). And, the Eleventh Circuit has “affirmed

dismissal of an action without prejudice for failure to comply with a court order even when the

case ‘does not involve a series of violation of court rules or pretrial orders.’” Id. (citing Dynes v.

Army Air Force Exch. Serv., 720 F.2d 1495, 1499 (11th Cir. 1983) (per curiam) (affirming

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dismissed without prejudice, [so] we cannot say that the district court abused its discretion”)).

An analysis of the excusable neglect factors explained by the Eleventh Circuit in Oquendo

clearly demonstrates that this case is not due to be reopened. Oquendo, 541 F. App’x at 956. First,

reopening this case would prejudice Defendants who adhered to all deadlines while Plaintiff’s

counsel repeatedly ignored the court’s orders. Defendants have also expended resources

responding to filings made only because of LLG’s noncompliance.

Second, the delays were substantial. The court previously ordered LLG to show cause why

they have not violated any professional duties of responsibility towards Plaintiff (Doc. # 15), but

LLG never responded to the court’s order. No other LLG attorney appeared on Plaintiff’s behalf

–until October 31, 2025, well after both the court’s May 30, 2025 deadline for LLG to show cause

and the end of the 60-day stay on July 19, 2025. Even accounting for Plaintiff’s recent cancer

diagnosis and age-related health concerns (Doc. # 23 at 4), the court provided Plaintiff an

additional 34 days to appear or file as directed. It is not clear she ever received a copy of this order.

But it was sent to her counsel (LLG) who either failed to give it to her or forward it to her and she

failed to respond. In any event, when LLG still failed to respond and no attorney appeared for

Plaintiff, the court ordered Plaintiff to show cause, pro se, why the case should not be dismissed

(Doc. #18). No response from LLG or Plaintiff was ever filed.

Third, the delays were entirely within LLG’s control. LLG terminated Attorney Fisher,

instructed him not to contact Plaintiff, and cut off his email access. LLG then ignored all court

directives, including the May 19 show cause order and subsequent orders sent by the Clerk to

multiple LLG addresses. The motion to reopen does not address this conduct and instead relies on

administrative issues arising months later regarding counsel’s admission. (See Docs. # 21, 23). By

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now. The delays in this matter were the direct result of LLG’s failures in representing Plaintiff.

Finally, nothing in the record demonstrates good faith on LLG’s part. LLG ignored

multiple show cause orders, failed to appear for months, and offers no explanation for their

inaction. Separately, the court recognizes that Plaintiff’s recent cancer diagnosis, coupled with

age-related health concerns, has prevented Plaintiff from undergoing the surgery planned to treat

the injuries at issue in this case and also interfered with Plaintiff’s ability to litigate. (Doc. # 23 at

4). Even so, after the 60-day stay, the court provided Plaintiff through LLG an additional 34 days

to appear on her own behalf or make any required filings. And, when LLG still had not responded

and no other attorney appeared for Plaintiff, the court ordered Plaintiff, and again through LLG,

to show cause why this case should not be dismissed without prejudice. (Doc. # 18). Neither LLG

nor Plaintiff responded to the court’s order. Accordingly, because the court “need not tolerate

defiance of reasonable orders,” this case was dismissed without prejudice and closed. Equity

Lifestyle Prop., Inc., 556 F.3d at 1241. Further, because the Oquendo factors do not demonstrate

excusable neglect, the court declines to set aside the dismissal under Rule 60(b)(1).

To the extent that Plaintiff’s motion is based on the catch-all provision of Rule 60(b)(6),

the Eleventh Circuit has observed “that relief under this clause is an extraordinary remedy which

may be invoked only upon a showing of exceptional circumstances.” Griffin v. Swim–Tech Corp.,

722 F.2d 677, 680 (11th Cir. 1984); see also Tucker v. Commonwealth Land Title Ins. Co., 800

F.2d 1054, 1056 (11th Cir. 1986). In addition, the Eleventh Circuit has “consistently has held that

60(b)(1) and (b)(6) are mutually exclusive. Therefore, a court cannot grant relief under (b)(6) for

any reason which the court could consider under (b)(1).” Solaroll Shade and Shutter Corp. v. Bio–

Energy Sys., Inc., 803 F.2d 1130, 1133 (11th Cir. 1986). Because Plaintiff’s excusable neglect

argument fits more naturally under Rule 60(b)(1), relief under (b)(6) is unavailable.

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relying on counsel for the failures of that counsel. But, that notion ignores two things. First,

Plaintiff has some responsibility for her case. Second, granting Plaintiff’s motion would risk

rewarding the same disregard for the court’s directives that led to dismissal under Rule 41(b).

Moreover, Plaintiff’s motion does not address LLG’s role in the events that led to dismissal and

offers no explanation for LLG’s failure to comply with the court’s May 19, 2025 show cause order

or any subsequent orders. Instead, the motion focuses on alleged administrative issues related to

counsel’s admission that arose only after all deadlines in this matter had already expired. (See

Docs. # 21, 23). Those arguments do not excuse LLG’s noncompliance, nor do they provide a

basis to set aside a dismissal entered under Rule 41(b).

The court finds it ironic that LLG’s motion on behalf of Plaintiff relies on the excusable

neglect standard when nothing about LLG’s actions is excusable or even remotely demonstrates

mere neglect. LLG’s conduct reflects a willful disregard of both its client’s interests and the

authority of this court. Such conduct constitutes a serious breach of professional duty that

undermines the integrity of the judicial process. The court cannot condone such obvious

dereliction, and the motion offers no justification capable of excusing or mitigating these

violations.

To the extent Plaintiff suffered harm from LLG’s handling of the representation, her

recourse lies not in setting aside this dismissal, but in pursuing any appropriate malpractice or

related claims against LLG in a separate proceeding.

IV. Conclusion

For all the above reasons, the court affirms its dismissal of this case without prejudice and

DENIES Plaintiff’s Motion to Reconsider.

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The Clerk of Court is DIRECTED to mail a copy of this Order to LLG who SHALL

provide a copy of the order to Plaintiff. The Clerk of Court is also DIRECTED to forward a copy

of this Order to the Lento Law Group at 1814 East Route 70, Suite 321, Cherry Hill, New Jersey,

08003 and Lento Law Group, 3003 N. Central Avenue, Suite 685, Phoenix, Arizona, 85012, and

both the State Bar of Arizona and New Jersey Bar Association with reference to the Lento Law

Group.

DONE and ORDERED this January 5, 2026.

SR. U.S. DISTRICT JUDGE