United States District Court, S.D. Alabama, Southern Division
YOLANDER BULLARD, et al. Plaintiffs,
THE HOUSING AUTHORITY of the CITY OF MONROEVILLE, et al., Defendants.
MEMORANDUM OPINION AND ORDER
F. MOORER UNITED STATES DISTRICT JUDGE.
before the Court is the Defendants' Motion for the
Voluntary Dismissal of All Claims Brought by Plaintiff
Candace Kidd and for an Evidentiary Hearing in the Event
Plaintiffs' Counsel Oppose the Motion (Doc. 33,
filed September 13, 2019). In the motion, Defendants move the
Court for an Order voluntarily dismissing all claims brought
by Plaintiff Candice Kidd (“Kidd”), asserting, in
relevant part, that she told Defendant Tammy LaBella
(“LaBella”) she wanted to be dropped from the
lawsuit. Defendants further state that Kidd telephoned
Plaintiffs' counsel in LaBella's presence and asked
to be removed from the lawsuit.
September 16, 2019, the Court entered an Order setting the
matter for hearing and providing a deadline for written
response by Plaintiff Kidd. See Doc. 34. The Court
ordered Kidd to be present in the hearing, as well as
Defendant LaBella and Affiant Jacqulyn Rankins.
to the hearing, on September 19, 2019, Plaintiffs'
counsel filed two documents. First, they filed a Motion
for Continuance seeking to postpone the hearing after
multiple failed attempts to meet with Kidd to prepare a
response to the motion for dismissal and prepare Kidd for the
hearing. Doc. 36. Specifically, despite setting several
meeting times, Kidd never showed up and/or failed to assist
counsel in responding to the Defendant's motion.
Plaintiffs' counsel filed a Motion to Withdraw as
Counsel for Candice Kidd, citing similar concerns. Doc.
37. Relevant to the current issue before the Court,
Plaintiffs' counsel noted that Kidd had indicated to them
she did not want to dismiss her claims. Specifically, at a
meeting on July 31, 2019, Kidd informed counsel that she had
gone to Defendant LaBella's office for an administrative
matter and asked Defendant LaBella whether she could lose her
apartment because of the lawsuit. Id. at 2. Kidd
relayed to counsel that LaBella told her maybe. Id.
at 2-3. Ultimately, Kidd told counsel she did not want to be
dropped from the lawsuit, particularly after learning from
counsel that it would be retaliatory for her to lose her
apartment for exercising her rights under the Fair Housing
Act. Id. at 3. Based on that July 31, 2019, meeting,
Plaintiff's counsel could not consent to the voluntary
dismissal sought by Defendants even though Kidd was
uncooperative in responding to the motion. Id.
Counsel also noted they could not guarantee Kidd would show
up for the scheduled hearing. Id. at 4.
Court convened the hearing on the motion on September 20,
2019. Kidd failed to appear at the hearing against this
Court's Order. Nevertheless, portions of the hearing were
held in her absence in order to obtain testimony from the
parties who did attend as required. At the conclusion of the
hearing, the Court denied as moot the motion to continue and
granted Plaintiffs' counsel's motion to withdraw from
representation as to Kidd. Doc. 38.
same order, the Court also instructed Kidd, now proceeding
pro se, to file one of the following with the Court:
(1) a notice that she intends to proceed in her claims
against Defendants in this case; (2) a response to
Defendants' motion to dismiss her claims; or (3) a notice
that she is seeking counsel to represent her in these
proceedings. Id. The Court's Order specifically
cautioned that failure to respond by the deadline could
result in Kidd's dismissal from the case without
prejudice for failure to prosecute and/or obey Court orders.
Id. at 2. The Court provided a deadline of October
9, 2019. The Order was mailed directly to Kidd as well as
provided to her by her former counsel. To date, no response
or additional documents have been filed by Plaintiff Kidd.
October 25, 2019, Defendants filed Defendants'
Renewed Motion to Dismiss All Claims Brought by Plaintiff
Candace Kidd, renewing their motion to dismiss all
claims brought by Kidd under Fed.R.Civ.P. 41(a)(2) in light
of Kidd's failure to respond to the Court's Order.
Doc. 39. Defendants note in the renewed motion that they
request dismissal without prejudice. Id. at 3.
Civ. P. 41(b) authorizes dismissal of a complaint for failure
to prosecute or failure to comply with a court order or the
federal rules. Gratton v. Great Am. Commc'ns,
178 F.3d 1373, 1374 (11th Cir. 1999). Further, such a
dismissal may be done on motion by the defendant or sua
sponte as an inherent power of the court. Betty K
Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th
Cir. 2005). “[D]ismissal upon disregard of an order,
especially where the litigant has been forewarned, generally
is not an abuse of discretion.” Saint Vil v.
Perimeter Mortg. Funding Corp., 715 Fed.Appx. 912, 915
(quoting Moon v. Newsome, 863 F.2d 835, 837 (11th
Cir. 1989) (quotations omitted)). “[E]ven a non-lawyer
should realize the peril to her case, when she ignores the
necessity to obtain new counsel, ignores numerous notices,
and fails to attend hearings and depositions.”
Anthony v. Marion Cty. Gen. Hosp., 617 F.2d 1164,
1169 (5th Cir. 1980); see also Moon, 863 F.2d at 837
(stating that, as a general rule, where a litigant has been
forewarned, dismissal for failure to obey a court order is
not an abuse of discretion).
Kidd was sufficiently warned that she must communicate with
the Court her intention with regard to her claims, and that
failure to do so would result in the dismissal of her claims
in this lawsuit. Therefore, the Court finds it appropriate to
exercise its “inherent power” to “dismiss
[Plaintiff's claims] sua sponte for lack of
prosecution.” See Link v. Wabash R.R. Co., 370
U.S. 626, 630, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962).
Accordingly, based on the foregoing and pursuant to
Fed.R.Civ.P. 41(b), Kidd is DISMISSED WITHOUT
PREJUDICE as a Plaintiff in this case for failure to
obey this Court's orders and failure to prosecute her
motion for dismissal (Doc. 33) under Fed.R.Civ.P. 41(a)(2) is
DENIED. Likewise, Defendants renewed motion
for dismissal (Doc. 39) is DENIED. The Court
finds that dismissal under Rule 41(a)(2) would it be
inappropriate under the circumstances.
 The Court notes that the motion
pertains to only one out of twenty-nine current plaintiffs.
The Court further notes that Plaintiff's name is spelled
“Candice” Kidd in ...