United States District Court, M.D. Alabama, Eastern Division
JENNIFER NORTON, CHERYL D. JONES, and RENAULDO JACKSON, Plaintiffs,
MAHEK LLC, Defendant.
REPORT AND RECOMMENDATION OF THE MAGISTRATE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
Jennifer Norton, Cheryl D. Jones, and Renauldo Jackson have
brought a Complaint against Defendant Mahek LLC under the
Fair Labor Standards Act. The undersigned held a status
conference in this case on May 17, 2019. For good cause and
as set forth below, it is the recommendation of the
Magistrate Judge that the claims brought by Jennifer Norton
and Renauldo Jackson be dismissed for want of prosecution.
filed an Unopposed Motion to Compel on May 2, 2019, asking
the Court to compel Plaintiffs to respond to Defendant's
discovery requests. See Doc. 21. Plaintiffs'
counsel was unopposed to the Motion to Compel because the
failure to provide discovery responses to Defendant was based
on Plaintiffs' having ceased communicating with him.
Id. ¶ 2. Counsel for both parties requested a
conference with the court regarding Plaintiffs' discovery
obligations. Id. Thus, the undersigned held a
telephone status conference on May 8, 2019. See Dkt.
Entry dated 5/8/19.
the telephone status conference, Plaintiffs' counsel
explained that he had made several attempts to reach his
clients regarding their overdue discovery responses and
proceeding with the case generally, but Plaintiff Cheryl
Jones was the only Plaintiff who responded. As a result, the
undersigned advised the parties' attorneys that he would
issue an order requiring Plaintiffs to attend a status
conference so the court could determine their willingness to
prosecute this action. The undersigned also directed
Plaintiffs' counsel to send a copy of the order to
Plaintiffs by certified mail. An order was then issued
setting the status conference for May 17, 2019, and expressly
stating that a failure to attend may result in the imposition
of sanctions. See Doc. 23.
status conference, Plaintiff's counsel represented in
court that he sent the court's order to Plaintiffs Norton
and Jackson by certified mail at the address he had for them
on file. He further stated that both certified mail envelopes
had been delivered, but he could not determine the name of
the individual who had signed for delivery of either
envelope. Plaintiff Cheryl Jones was the only Plaintiff who
attended the status conference.
DISCUSSION AND ANALYSIS
Rule 41 of the Federal Rules of Civil Procedure, a court may
dismiss an action “[f]or failure of the plaintiff to
prosecute or to comply with these rules or any order of
court.” Fed.R.Civ.P. 41(b). As the Supreme Court
recognized in Link v. Wabash Railroad Company,
“[t]he power to invoke this sanction is necessary in
order to prevent undue delays in the disposition of pending
cases and to avoid congestion in the calendars of the
District Courts.” 370 U.S. 626, 629-30 (1962).
Nonetheless, the “severe sanction of a dismissal or
default judgment is appropriate only as a last resort, when
less drastic sanctions would not ensure compliance with the
court's orders.” Malautea v. Suzuki Motor Co.,
Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993) (citing
Navarro v. Cohan, 856 F.2d 141, 142 (11th Cir.
undersigned recommends that dismissal is appropriate for the
claims of Plaintiffs Jennifer Norton and Renauldo Jackson, as
they have failed to prosecute this case despite having been
provided more than a reasonable opportunity to do so.
Specifically, these Plaintiffs have failed or refused to
maintain communication with their attorney and have failed to
provide Defendant with responses to its discovery requests by
the deadline set forth in the rules or the extended deadlines
agreed to by Defendant's attorney. Doc. 21 ¶ 1-2 and
Exhibits A-C. Because of the unresponsiveness by Plaintiffs
Norton and Jackson, their attorney agreed to the granting of
a motion to compel against them and requested a status
conference to advise the court of their unwillingness to
respond or communicate with him. Id. ¶ 2.
order to assess Plaintiffs' desire to move forward with
this case, the undersigned entered an order requiring their
presence at a status conference and warning that sanctions
could be imposed if they failed to appear. Doc. 23. That
order was sent to Plaintiffs by certified mail and delivered,
although it is unclear whether they signed for the envelope
or if someone else signed for them. Despite their
attorney's repeated attempts to contact them and despite
the court's order to appear, which expressly warned that
a failure to appear could result in sanctions, Plaintiffs
Norton and Jackson failed to respond to their attorney or
appear at the status conference. Accordingly, the undersigned
recommends dismissal of all claims brought by Plaintiffs
Jennifer Norton and Renauldo Jackson.
respect to dismissals, the Eleventh Circuit has held:
Dismissal of a case with prejudice under Rule 41(b) is a
sanction of last resort, applicable only in extreme
circumstance. Id. Simple negligence does not warrant
dismissal. McKelvey v. AT & T Techs., Inc., 789
F.2d 1518, 1520 (11th Cir. 1986). Rather, “[d]ismissal
is appropriate where there is a clear record of
‘willful' contempt and an implicit or explicit
finding that lesser sanctions would not suffice.”
Gratton v. Great Am. Commc'ns, 178 F.3d 1373,
1374 (11th Cir. 1999).
McIntosh v. Gauthier, 182 Fed.Appx. 884, 886-87
(11th Cir. 2006). Plaintiffs have repeatedly ignored requests
from their attorney to communicate with him regarding
discovery responses and their desire to prosecute this case.
However, after Plaintiffs' counsel sent copies of the
court's order requiring their attendance at a status
conference, the attorney was unable to state with certainty
that either Plaintiff was the individual who actually signed
for the certified mail envelopes. Accordingly, being mindful
of the judicial caution that should attend a dismissal and
unable to find a “clear record of willful contempt,
” the undersigned recommends that the claims of
Plaintiffs Norton and Jackson be dismissed without prejudice.