United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
STEPHEN M. DOYLE UNITED STATES MAGISTRATE JUDGE
22, 2018, Plaintiff filed a pro se Complaint
accusing Defendant of employment discrimination under Title
VII of the Civil Rights Act of 1964, § 706(d)(1), as
codified, 42 U.S.C. § 2000e-5(e)(1). (Doc. 1). On July
18, 2018, Defendant responded to Plaintiff's Complaint by
filing a Motion to Dismiss arguing that Plaintiff failed to
state a cause of action for which relief could be granted.
(Doc. 8). On August 1, 2018, Plaintiff filed a Motion to
Amend Claim requesting permission to amend her Complaint in
order to fix the deficiencies identified by Defendants.
(Docs. 19, 20). On September 12, 2018, Plaintiff filed a
Motion asking the Court for time to retain counsel. (Doc.
25). Plaintiff averred she was actively seeking
representation but was, as of yet, unsuccessful. Id.
Plaintiff indicated that she was “ready and
willing” to proceed pro se if she were unable
to ultimately secure representation. Id.
September 27, 2018, the Court ordered Plaintiff to, on or
before October 12, 2018, either: 1) retain an attorney to
represent her in this matter and cause that attorney to file
a notice of appearance into the record; or 2) file a written
notice stating that she intends to proceed pro se.
(Doc. 26). The Court received no response from Plaintiff. On
January 7, 2019, the Court granted Plaintiff's Motion to
Amend Complaint and directed her to file her amended
complaint on or before January 10, 2019. (Doc. 28). The Court
received no response from Plaintiff. On February 20, 2019,
the undersigned ordered Plaintiff to file a written notice
with the Court stating whether she intended to pursue her
case against Defendant. (Doc. 29). To this date, the Court
has received no response from Plaintiff.
courts possess the ability to dismiss a case with prejudice
for want of prosecution based on two possible sources of
authority: Fed.R.Civ.P. 41(b) or their inherent authority to
manage their dockets.” Eades v. Ala. Dep't of
Human Res., 298 Fed.Appx. 862, 863 (11th Cir. 2008)
(citing Betty K Agencies Ltd. v. M/V Monada, 432
F.3d 1333, 1337 (11th Cir. 2005); see also Thomas v.
Montgomery Cty. Bd. of Educ., 170 Fed.Appx. 623, 625
(11th Cir. 2006). “Regardless of the authority for the
dismissal, a district court should dismiss a case for want of
prosecution with prejudice only when faced with ‘a
clear record of delay or contumacious conduct by the
plaintiff.'” Eades, 298 Fed.Appx. at
863-64 (quoting McKelvey v. AT&T Techs., Inc.,
789 F.2d 1518, 1520 (11th Cir. 1986)). A sua sponte
dismissal operates as an adjudication on the merits unless
otherwise specified. See Bright v. Zeigler, 644
Fed.Appx. 889, 891 (11th Cir. 2016). A judge ordering
dismissal is required to make findings that a plaintiff has
engaged in a clear pattern of delay or willful contempt and
that lesser sanctions would not suffice. Id.
Plaintiff has failed on multiple occasions to comply with
Court-ordered deadlines. Indeed, Plaintiff failed to respond
to the Court's order (Doc. 26) regarding whether she
intended to seek counsel or proceed pro se.
Plaintiff also failed to respond to the Court's order
(Doc. 28) to file her amended complaint on or before January
10, 2019. Plaintiff further failed to respond to the
Court's order (Doc. 29) to inform the Court if she
intends to continue pursuing her case against Defendant. In
its third Order, the Court expressly warned Plaintiff that
“her failure to file such written notice with the court
will result in the undersigned entering a recommendation that
Plaintiff's complaint be dismissed for failure to
prosecute and failure to follow the court's
orders.” See (Doc. 29) (bold and underline
unresponsiveness to the Court's orders demonstrates to
the undersigned a clear pattern of delay and/or contempt.
See Eades, 298 Fed.Appx. at 864 (finding that
repeated failures to comply with court deadlines evidenced a
clear pattern of delay). Further, Plaintiff has not attempted
to notify the Court that she is unable to comply with the
Court-ordered deadlines. See Eades, 298 Fed.Appx. at
864 (finding that the plaintiff's failure to apprise the
court she was going to miss the court-ordered deadlines
unnecessarily delayed court proceedings); see also Duong
Thanh Ho v. Costello, No. 18-12063, 2018 WL 6536010, at
*1 (11th Cir. Dec. 12, 2018) (finding that the district court
did not abuse its discretion in dismissing the case where the
court's orders clearly instructed the plaintiff what to
do and what was expected of him and the plaintiff failed to
comply). Accordingly, the undersigned finds that Plaintiff
has engaged in a pattern of delay because of her failure to
prosecute her case and to abide by court orders.
it is also clear to the undersigned that a lesser sanction
than dismissal would not suffice in this case. The purpose of
a sanction is to deter repetition of certain conduct and to
deter others from committing similar violations. See
Fed. R. Civ. P. 11(c)(4); see also McDonald v. Emory
Healthcare Eye Ctr., 391 Fed.Appx. 851, 852-53 (11th
Cir. 2010). The undersigned does not believe that a
sanction-e.g. assessment of a fine-would compel Plaintiff to
respond to the Court's orders. As it is Plaintiff's
cause to litigate and it is clear that she has abandoned that
cause, the undersigned finds that dismissal of
Plaintiff's case is the appropriate remedy.
for the reasons stated above, it is the RECOMMENDATION of the
Magistrate Judge that Plaintiff's Complaint (Doc. 1) be
DISMISSED WITHOUT PREJUDICE.
it is ORDERED that the parties are is DIRECTED to file any
objections to the said Recommendation on or before
April 8, 2019. A party must specifically identify
the factual findings and legal conclusions in the
Recommendation to which objection is made; frivolous,
conclusory, or general objections will not be considered.
Failure to file written objections to the Magistrate
Judge's findings and recommendations in accordance with
the provisions of 28 U.S.C. § 636(b)(1) shall bar a
party from a de novo determination by the District
Court of legal and factual issues covered in the
Recommendation and waives the right of the party to challenge
on appeal the District Court's order based on
unobjected-to factual and legal conclusions accepted or
adopted by the District Court except upon grounds of plain
error or manifest injustice. Nettles v. Wainwright,
677 F.2d 404 (5th Cir. 1982); 11th Cir. R. 3-1; see Stein