United States District Court, S.D. Alabama, Southern Division
K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE
action is before the Court on Plaintiffs' response to
show cause order (doc. 70). Previously, upon sua
sponte review of this action, the Court found that
Plaintiffs had filed returns of service as to Defendants
Uncle John Holdings, LLC and Blue Capital Pte Ltd. in June
2017 (doc. 7, doc. 8) and that these defendants had not
answered or otherwise appeared. The Court found that more
than six months had passed since the complaint was filed in
May 2017 and that Plaintiffs had not sought default and
default judgment during that time. The Court informed
Plaintiffs that pursuant to Civil Local Rule 41(b) for the
Southern District of Alabama,
Whenever a served Defendant has failed to answer or otherwise
defend within six (6) months from the filing of the complaint
and the Plaintiff has not sought default and default
judgment, the Court upon notice may dismiss the action for
failure to prosecute, in accordance with applicable law.
S.D. Ala. Civ. L.R. 41(b).
Court also advised the Plaintiffs that Rule 41(b) of the
Federal Rules of Civil Procedure sets forth the applicable
law for dismissal for failure to prosecute. The Rule provides
(b) Involuntary Dismissal; Effect. If the 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. Unless the dismissal order states otherwise, a dismissal
under this subdivision (b) and any dismissal not under this
rule--except one for lack of jurisdiction, improper venue, or
failure to join a party under Rule 19--operates as an
adjudication on the merits.
Fed. R. Civ. P. 41(b).
Court further explained that although Rule 41(b) states that
a defendant may move to dismiss, a “district court may
sua sponte dismiss a case under the authority of either Rule
41(b) or the court's inherent power to manage its
docket.” Garrett v. Birmingham Police
Dep't, ___ Fed.Appx. ___, 2019 WL 1890527, at *1
(11th Cir. Apr. 29, 2019) (citing Betty K Agencies, Ltd.
v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005)).
Court then ordered Plaintiffs to show cause why this Court
should not dismiss this action without prejudice as to Uncle
John and Blue Capital on basis that Plaintiffs had failed to
prosecute this action with respect to these defendants. The
Court further explained that the show cause order would serve
as notice to the Plaintiffs of the Court's intent to
dismiss this action without prejudice as to Uncle John and
Blue Capital for failure to prosecute, in accordance with the
Court's inherent authority to manage the cases on its
docket and Fed.R.Civ.P. 41(b).
have now filed their response to the show cause order.
Plaintiffs state that leading up to the final pretrial
conference set for June 6, 2019, they began to prepare a
motion for entry of default judgment and discovered that
Uncle John and Blue Capital had been served with a copy of
the complaint as evidenced by the postal return receipts but
were not served with a summons because no summons was issued
for them (doc. 70). Plaintiffs state that default judgment
cannot be properly entered because service of process has not
been perfected, i.e., service with a summons.
Plaintiffs ask the Court to allow them to now serve Uncle
John and Blue Capital with a summons because of “the
unique situation surrounding the service of these two
defendants and since both have been served with the
complaint” (doc. 70, p. 2). Plaintiffs assert that
Uncle John and Blue Capital will not be prejudiced because
they “had notice of this case since its
did not respond to the Court's question. The Court asked
the Plaintiffs to show cause why they had taken no action
with respect to Uncle John and Blue Capital since June of
2017 when the postal return receipts were docketed. By
Plaintiffs own admission, they did not begin to prepare an
application for entry of default until recently. Regardless
of whether Uncle John and Blue Capital were properly served
in June 2017, Plaintiffs have done nothing with respect to
these defendants for two years. Since no good cause for this
delay has been shown, the Court is not inclined to issue
summons now and restart this litigation, which is at its end
point according to the most recent Amended Rule
16(b) Scheduling Order.
Court finds that Plaintiffs' conduct does not rise to the
level of willful contempt such that the sanction of dismissal
with prejudice would be appropriate. Arguably, Plaintiffs have
engaged in a clear pattern of delay since they have done
nothing for two years as to Blue Capital and Uncle John.
However, Plaintiffs failure to prosecute appears to be the
result of negligence or mistake. Therefore, the Court finds that
the lesser sanction of dismissal without prejudice is
this action is dismissed without prejudice
as to Uncle John and Blue Capital for failure to prosecute