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Barr v. One Touch Direct, LLC

United States District Court, M.D. Florida, Tampa Division

March 28, 2017

ALFRED BARR, Plaintiff,
v.
ONE TOUCH DIRECT, LLC, et al. Defendants.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE

         This matter comes before the Court upon consideration of Defendants One Touch Direct, LLC, AT&T Services, Inc., and DPG Employee Leasing LLC's Motion to Dismiss Plaintiff's Claims against Defendants with Prejudice (Doc. # 172), filed on March 9, 2017. Pro se Plaintiff Alfred Barr's response was due on March 23, 2017. However, as of this Order, Barr failed to respond.

         In addition, the Court previously ordered Barr to file a supplement explaining an apparent discrepancy in the record. (Doc. # 181). That supplement was due on March 27, 2017. (Id. at 6). As of this Order, Barr failed to file the supplement. For the reasons below, this action is dismissed.

         I. Protraction: A Background to this Case

         Barr instituted this action on October 9, 2015. (Doc. # 1). The original complaint named five defendants: “One Touch Direct, LLC, et al., Joseph Mole, and Christopher Reed, AT&T, and DPG Leasing.” (Id. at 1). After the Court held its case management hearing, during which Barr was granted leave to amend, Barr filed his first amended complaint on January 19, 2016. (Doc. # 38). The first amended complaint named “One Touch Direct, LLC, Joseph Mole, and Christopher Reed, AT&T Services Inc., and DPG Employee Leasing LLC” as defendants. (Id. at 1).

         The Defendants moved to dismiss the first amended complaint and Barr failed to timely respond. (Doc. ## 43, 50). As such, the Court granted the motion to dismiss as unopposed and closed the case. (Doc. # 50). However, Barr moved to reopen the action (Doc. # 53) and, in the interests of fairness and recognizing that cases are preferably tried upon the merits, the Court reopened the action. (Doc. # 56).

         The Court specifically stated in that Order:

the Court reminds Barr yet again that he must comply with all Local Rules and the Federal Rules of Civil Procedure. Johnson v. Rosier, 578 Fed.Appx. 928, 930 (11th Cir. 2014) (stating, “[a] pro se litigant ‘is subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure'” (quoting Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989))). The Court takes deadlines seriously and it is Barr's responsibility to ensure that he complies with such deadlines or seeks relief by filing an appropriate motion.

(Id. at 2-3). In addition, the Court granted Barr leave to file a second amended complaint (Id. at 3).

         Barr filed his second amended complaint on March 18, 2016. (Doc. # 64). The second amended complaint named “One Touch Direct, LLC, Joseph Mole, Christopher Reed, AT&T Services Inc., and DPG Employee Leasing LLC” as defendants. (Id. at 1).

         Another round of briefing ensued during which the Defendants sought dismissal of the second amended complaint, or particular counts thereof, on various grounds. (Doc. ## 69, 70, 74, 76). One of the arguments asserted by Mole and Reed was that the second amended complaint should be dismissed as against them under Rule 12(b)(5) for insufficient service of process. (Doc. # 70 at 2-4). The Court provided an in-depth discussion regarding service in its Order dismissing the second amended complaint. (Doc. # 78 at 7-12). Moreover, Barr's suit against Mole and Reed was not dismissed with prejudice at that stage due to failure to comply with Rule 4; rather, Barr was granted an extension of time to effect service upon Mole and Reed. (Id. at 12; Doc. # 82).

         On May 31, 2016, Barr filed his third amended complaint. (Doc. # 93). The third amended complaint named only four defendants: “One Touch Direct, LLC, Joseph Mole, AT&T Services Inc., and DPG Employee Leasing LLC.” (Id. at 1). When Barr failed to comply with the Court's deadline for effecting service and filing proof of service, the Court- instead of summarily dismissing Barr's action for failure to comply with Rule 4 and the Court's deadline-granted Barr a second extension of time to serve the sole remaining individual Defendant, Mole. (Doc. # 100). The Court also provided another in-depth discussion on the requirements of Rule 4 in an effort to explicate what was required of Barr. (Id.).

         Two interlocutory appeals were then taken by Barr from a litany of Court Orders. (Doc. ## 111, 132). Both appeals were dismissed sua sponte by the Eleventh Circuit for lack of jurisdiction. (Doc. ## 136, 140). Before Barr filed those interlocutory appeals, the Defendants had moved to dismiss the third amended complaint. (Doc. ## 106, 107). Because the filing of a notice of appeal is an event of jurisdictional significance, Green Leaf Nursery v. E.I. DuPont de Nemours & Co., 341 F.3d 1292, 1309 (11th Cir. 2003) (internal citations omitted), the Court deferred ruling on the motions to dismiss. (Doc. # 117). Once jurisdiction reinvested with this Court, Barr was instructed to respond to the pending motions to dismiss by February 20, 2017, which was extended to March 2, 2017. (Doc. ## 142, 156).

         Rather than actually responding to the motions to dismiss, Barr filed what was in effect a motion for leave to file a fourth amended complaint. (Doc. # 165). Attached to the construed motion for leave to file a fourth amended complaint was Barr's proposed fourth amended complaint. (Doc. # 165-1). The proposed fourth amended complaint named only “One Touch Direct, LLC, a Florida Limited Liability Company (‘OTD'), DPG Employee Leasing, LLC, a foreign limited liability company (‘DPG'), and AT&T Services, Inc., a foreign corporation (‘AT&T')” as defendants. (Id. at 1). The proposed fourth amended complaint did not once mention Mole or Reed. (Id.). Although the Defendants' objected to Barr's request, the Court granted Barr leave to amend. (Doc. # 166). Barr was instructed to file the proposed fourth amended complaint as his operative complaint by March 6, 2017, and, in light of the allowance for a fourth amended complaint, the Court denied the Defendants' motions to dismiss as moot. (Id.).

         After the Court directed Barr to file the proposed fourth amended complaint by March 6, 2017, he filed a response to a motion, even though the motion had already been denied as moot. (Doc. # 167). The next day, on March 3, 2017, the Court again directed Barr to file his proposed fourth amended complaint by March 6, 2017. (Doc. # 168). Barr, however, failed to comply with the Court's directive.

         On March 9, 2017, three days after the deadline for filing the fourth amended complaint passed, Barr filed a motion seeking a retroactive extension of time, as well as his belated fourth amended complaint. (Doc. ## 170, 171). That same day, Defendants filed the instant Motion seeking to have this action involuntarily dismissed pursuant to Federal Rule of Civil Procedure 41(b). (Doc. # 172).

         Barr explained his failure to comply with the Court-ordered deadline with the following statement:

For some unknown reason, the court's CM ECF system failed to complete service to the Plaintiff with Documents #163 thru #168. Therefore, the Plaintiff has not received any notice of court activity for the documents listed. Upon filing a new document, the plaintiff ...

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