United States District Court, N.D. Alabama, Northwestern Division
MEMORANDUM OPINION AND DISMISSAL ORDER
N. JOHNSON, JR. UNITED STATES MAGISTRATE JUDGE
civil action proceeds before the court on Defendant
Pilgrim's Pride Corporation's (“Pilgrim's
Pride”) Motion to Dismiss for Failure to Prosecute
(Doc. 21) and Pilgrim's Pride's Motion for Entry of
Defendant's Motion to Dismiss for Failure to Prosecute
or, in the Alternative, Stay Proceedings. (Doc. 23). Based
upon the following discussion, the court
GRANTS both motions.
March 31, 2017, Plaintiff Everett Shields filed a race
discrimination complaint, pursuant to Title VII, against
Pilgrim's Pride. (Doc. 1). The court entered a Scheduling
Order on June 6, 2017, requiring that all discovery in this
matter be completed by February 28, 2018. (Doc. 16 at 2).
24, 2017, Pilgrim's Pride served a notice of deposition
that informed Shields of his deposition at a time and place
to be determined. Shields, through counsel, served discovery
requests on Pilgrim's Pride on July 14, 2017.
Pilgrim's Pride responded to these requests, producing
documents to Shields on August 30 and October 5, 2017.
Pilgrim's Pride served its first discovery requests on
Shields on July 19, 2017. Shields's counsel never
provided discovery responses to Pilgrim's Pride.
Pride also informed Shields's counsel, from the outset of
this matter, that Mr. Shields's claim fails because
Pilgrim's Pride did not hire the alleged comparator.
Pilgrim's Pride alleged that this fact alone prevents
Shields from successfully bringing a claim for race
discrimination under Title VII. On October 5, 2017, counsel
for Pilgrim's Pride informed Shields's counsel of the
possibility of pursuing a Rule 11 dismissal. On October 26,
2017, Pilgrim's Pride served Shields's counsel with
Motion for Sanctions under Rule 11(c)(2), and Shields's
counsel responded that he would discuss with his client the
need to dismiss the lawsuit. Eventually, Shields's
counsel successfully filed a Motion to Withdraw as Counsel on
December 18, 2017, indicating in his motion that “[a]t
this time, the Plaintiff has not called this attorney, nor
has he returned this attorney's calls.” (Doc. 19).
court granted the Motion to Withdraw on December 19, 2017,
and specifically advised Shields of the following:
[Plaintiff] is required to adhere to the schedule and
deadlines in the court's orders entered in this action on
June 6, 2017, and comply with any further order of this
court. The Court further ADVISES plaintiff that failure to
abide by court orders or participate in discovery in this
action may result in dismissal of this action for lack of
prosecution or as sanction.
(Doc. 20). On January 18, 2018, Pilgrim's Pride's
counsel sent Shields a letter via certified mail, explaining
that Shields had failed to respond to Pilgrim's
Pride's discovery requests and it was unable to set
Shields's deposition. The letter also reminded Shields
that Pilgrim's Pride served his former counsel with a
Rule 11 Motion for Sanctions on October 26, 2017. The letter
requested a response from Shields by February 1, and a
response to the Rule 11 Motion by February 8, and Shields had
yet to contact Pilgrim's Pride as of February 21, 2018.
February 21, 2018, Pilgrim's Pride filed a Motion to
Dismiss for Lack of Prosecution. (Doc. 21). The court entered
an order requiring Shields to respond to the motion within
fourteen days. (Doc. 22). Shields never filed a response. On
March 30, 2018, Pilgrim's Pride filed a Motion for Entry
of Defendant's Motion to Dismiss for Failure to Prosecute
or, in the Alternative, Stay Proceedings. (Doc. 23). The
Court granted the motion as to Pilgrim's Pride request to
stay all remaining deadlines set forth in the Rule 16
Scheduling Order, (Doc. 24), and the Court hereby proceeds on
the dismissal issue.
Rule of Civil Procedure 41(b) states: “[i]f a 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.” In reviewing a motion to dismiss,
the Eleventh Circuit provides:
Dismissal of a case with prejudice is considered a sanction
of last resort, applicable only in extreme circumstances. In
reviewing a dismissal under Rule 41(b), we consider whether
there is a clear record of delay or willful contempt and a
finding that lesser sanctions would not suffice. Mere
negligence or confusion is not sufficient to justify a
finding of delay or willful misconduct. Dismissal pursuant to
Rule 41(b) upon disregard of an order, especially where the
litigant has been forewarned, generally is not an abuse of
Kelly v. Old Dominion Freight Line, Inc., 376
Fed.Appx. 909, 913-14 (11th Cir. 2010)(internal
quotations and ...