United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE.
January 23, 2019, Defendants City of Birmingham, Alabama, and
Officer Ivey Nicole Jackson (the “City
Defendants”) renewed their motion to dismiss this case
with prejudice for want of prosecution. (Doc. 56). Although
he had not joined in the original motion, Defendant Torrey
Gibbs (“Gibbs”) has joined in these
Defendants' renewed motion. (Doc. 57). The undersigned
provided a February 7, 2019 deadline for Plaintiff Quiandra
Johnson (“Johnson”) to respond. (Doc. 58).
However, Johnson did not comply with that deadline, instead
filing a response twelve days after it had passed. (Doc. 60).
Gibbs has filed a reply in support of the City
Defendants' motion. (Docs. 61). For the reasons stated
below, the City Defendants' motion to dismiss, (doc. 56),
is due to be GRANTED.
outset of this case, Johnson was represented by counsel. On
May 2, 2018, her counsel moved to withdraw. (Doc. 41).
Counsel attached a letter from Johnson dated the same day
stating Johnson was terminating the attorney-client
relationship and requesting the return of her file. (Doc.
41-1). Counsel represented to the court that she had provided
a copy of her motion to withdraw to Johnson and informed her
of her right to object within fourteen days. (Doc. 41 at 2).
Johnson did not object, and the undersigned granted the
motion to withdraw on May 21, 2018. (Doc. 42).
Johnson refused in large part to participate in this case. On
October 1, 2018, the City and Officer Jackson moved to compel
discovery responses from Johnson and from Officer Gibbs,
which at that point were more than fifty days late. (Doc.
45). The undersigned set an opposition deadline, (doc. 46),
but neither party responded. The undersigned granted the
motion to compel on October 18, 2018, ordering discovery
responses by November 1, 2018. (Doc. 47).
November 2, 2018, the City Defendants moved to dismiss the
complaint for lack of prosecution. (Doc. 49). According to
the City Defendants, Johnson had not complied with the order
and had refused to produce responses, sit for her deposition,
or participate in the lawsuit at all without an attorney.
(Id. at 1-3). The City Defendants claimed that
Johnson has communicated her refusal to sit for her
deposition in multiple phone calls and her refusal to
participate in the case in one phone call. (Id. at
undersigned held a hearing on the motion to dismiss on
November 28, 2018. Although the order setting the hearing
noted in bold, underlined text that
“Plaintiff is required to attend the
hearing, ” (doc. 52), and one of the
undersigned's law clerks had called Plaintiff to inform
her of the date and time of the hearing and that she was
required to attend, Plaintiff did not appear at that hearing.
The undersigned's staff called Plaintiff to determine
whether she planned to attend, ultimately placing her on
speakerphone in open court. Because Plaintiff stated she
intended to pursue the case and was looking for new counsel,
the undersigned reset the hearing on the motion to dismiss,
providing “one final
opportunity to address the motion to dismiss
for failure to prosecute.” (Doc. 53) (emphasis in
December 18, 2018, the undersigned held the reset hearing.
Johnson appeared at this hearing in person, stating she had
not found counsel but intended to keep looking. The
undersigned informed Johnson that regardless of whether she
had found counsel, she was responsible for prosecuting this
case, including through providing discovery responses to
Defendants and sitting for her deposition, and Johnson
acknowledged that obligation. The undersigned entered an
order the same day stating the following:
Under Fed.R.Civ.P. 41(b), the court may dismiss a case when
“the plaintiff fails to prosecute or comply with these
rules or a court order.” Dismissal with prejudice, as
the moving defendants request, “is an extreme sanction
that may be properly imposed only when: (1) a party
engages in a clear pattern of delay or willful contempt
(contumacious conduct); and (2) the district court
specifically finds that lesser sanctions would not
suffice.” Betty K Agencies, Ltd. v. M/V
MONADA, 432 F.3d 1333, 1338 (11th Cir. 2005) (emphasis
in original, citation omitted). Although Johnson's
refusal to cooperate in discovery and failure to attend the
previous hearing might support a clear pattern of delay, the
undersigned does not believe that the conduct Johnson has
demonstrated is sufficiently egregious to merit dismissal
with prejudice. Therefore, the Moving Defendants' motion,
(doc. 49), is DENIED. However,
Plaintiff is warned that her past conduct will be considered
if she fails to abide by her discovery obligations and the
issue is before the court again.
(Doc. 54 at 2) (emphasis added).
January 23, 2019, the City Defendants filed the instant
motion. (Doc. 56). The City Defendants allege that on
December 28, 2018, they re-noticed Johnson's deposition
for January 23, 2019. (Id. at 2; doc. 56-2).
However, Johnson spoke with counsel for the City Defendants
on January 22, 2019 - the day before her deposition was
scheduled - and informed them that she would not attend the
deposition because she had a mandatory class on the date of
the deposition. (Id. at 2-3). The City Defendants
state the call “ended abruptly, ” and Johnson did
not appear at her scheduled deposition. (Id.). The
undersigned set a February 7, 2019 deadline for Johnson to
respond to the motion to dismiss. (Doc. 58).
January 25, 2019, Johnson filed a one-page motion - dated
January 18, 2019, but postmarked January 23, 2019 - asking
the court to reschedule the deposition. (Doc. 59). The motion
indicated the scheduled date “is critical for
[Johnson's] attendance in class.” (Id.).
Johnson did not otherwise respond to the motion to dismiss by
the deadline set out in the order.
February 19, 2019, Johnson filed her opposition to the motion
to dismiss. (Doc. 60). Johnson begins her response by
defending the adequacy of her complaint under the Federal
Rules of Civil Procedure, which is not at issue here.
(Id. at 1). She continues by disputing that the
phone call with the City Defendants' counsel ended
abruptly, but she does not dispute that she refused to sit
for her scheduled deposition. (Id. at 1-2). Finally,
Johnson notes that she submitted discovery responses as
ordered, which she says shows she is “abiding by the
procedures that are in my control.” (Id.).