United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
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.
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
Protraction: A Background to this Case
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
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).
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).
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).
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).
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.
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).
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.
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.
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).
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 ...