United States District Court, M.D. Florida, Fort Myers Division
REPORT AND RECOMMENDATION
MCCOY UNITED STATES MAGISTRATE JUDGE
cause comes before the Court, sua sponte, on the
Order to Show Cause as to Pauline Phipps (Doc. 24) entered on
February 14, 2017.
January 6, 2017, the Court granted a Motion to Withdraw (Doc.
22). In that Order, the Court allowed attorneys Jason L.
Gunter and Conor P. Foley of the law firm Jason L. Gunter
P.A. to withdraw as counsel for Plaintiff Pauline Phipps in
this action. (Doc. 23 at 2). The Court allowed Plaintiff a
period of thirty (30) days from the date of that Order to
secure new counsel and have counsel file a notice of
appearance, or to notify the Court that she intends to
proceed pro se. (Id.). The Court warned
Plaintiff, however, that failure to have new counsel file a
notice of appearance, or to notify the Court of her intent to
proceed pro se, would cause the Court to recommend
that her complaint be dismissed. (Id.).
Plaintiff did not respond to that Order, the Court entered an
Order to Show Cause (Doc. 24) on February 14, 2017, which
required Plaintiff to show cause within fourteen (14) days
why she failed to comply with the January 6, 2017 Order (Doc.
23). (Doc. 24 at 1). Additionally, the Court again ordered
Plaintiff to secure new counsel and have counsel file a
notice of appearance, or to notify the Court that she intends
to proceed pro se within fourteen (14) days.
(Id. at 1-2). The Court warned Plaintiff once again
that if she failed to have new counsel file a notice of
appearance, or to notify the Court of her intent to proceed
pro se, then the Court would recommend that her
complaint be dismissed. (Id.).
that time, Plaintiff has failed to file anything showing good
cause or to notify the Court of her intentions, as ordered.
Moreover, the time for Plaintiff to respond has passed.
decision to dismiss for want of prosecution is within the
Court's discretion. See McKelvey v. AT & T
Techs., Inc., 789 F.2d 1518, 1520 (11th Cir. 1986)
(citing Martin-Trigona v. Morris, 627 F.2d 680, 682
(5th Cir. 1980)). The Eleventh Circuit has held, however,
that “the severe sanction of dismissal - with prejudice
or the equivalent thereof - should be imposed ‘only in
the face of a clear record of delay or contumacious conduct
by the plaintiff.'” Id. (citing
Martin-Trigona, 627 F.2d at 682). The Eleventh
Circuit further stated that “such dismissal is a
sanction of last resort, applicable only in extreme
circumstances, and generally proper only where less drastic
sanctions are unavailable.” Id. (citing
Searock v. Stripling, 736 F.2d 650, 653 (11th Cir.
1984); E.E.O.C. v. Troy State University, 693 F.2d
1353, 1354, 1358 (11th Cir. 1982)). The Court further held
that “[a] finding of such extreme circumstances
necessary to support the sanction of dismissal must, at a
minimum, be based on evidence of willful delay; simple
negligence does not warrant dismissal.” Id.
(citing Searock, 736 F.2d at 653; Troy
State, 693 F.2d at 1354, 1357).
dismissal for lack of prosecution is a harsh sanction, the
Undersigned can only conclude that Plaintiffs delay and
unresponsiveness in this case is willful. See
McKelvey, 789 F.2d at 1520. Plaintiff has twice failed
to comply with Court Orders. In fact, Plaintiff has not filed
anything in this case since her attorneys withdrew as
counsel. At this point, because Plaintiff has blatantly
failed to comply with two successive Court Orders and has
otherwise made no showing in any respect that she wishes this
action to proceed, the Undersigned can only view Plaintiffs
actions as willful delay warranting dismissal for failure to
prosecute. See id.
the Undersigned RESPECTFULLY RECOMMENDS that Plaintiffs
Amended Complaint (Doc. 11) be dismissed.
recommended in Chambers in Fort Myers, Florida on March 9,
has fourteen days from this date to file written objections
to the Report and Recommendation's factual findings and
legal conclusions. A party's failure to file written
objections waives that party's right to challenge on
appeal any unobjected-to factual finding or legal ...