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Allen v. Uncle John Holdings, LLC

United States District Court, S.D. Alabama, Southern Division

June 20, 2019

JARED ALLEN, et al., Plaintiffs,
v.
UNCLE JOHN HOLDINGS, LLC, et al., Defendants.

          ORDER

          KRISTI K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE

         This 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).

         The 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 as follows:

(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).

         The 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)).

         The 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).

         Plaintiffs 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 inception.” (Id.).

         Plaintiffs 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[1] according to the most recent Amended Rule 16(b) Scheduling Order.[2]

         The 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.[3] 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[4] or mistake.[5] Therefore, the Court finds that the lesser sanction of dismissal without prejudice is appropriate.

         Accordingly, this action is dismissed without prejudice as to Uncle John and Blue Capital for failure to prosecute and ...


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