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 Plaintiff Air Quality Assessors,
LLC, entered on June 21, 2018. (Doc. 11).
action was removed from state court on May 1, 2018. (Doc. 1).
On May 7, 2018, after removal, Defendant filed a Notice of
Filing Plaintiff's Voluntary Dismissal Without Prejudice.
(Doc. 9). The Notice requested dismissal of this action
without prejudice based upon purported representations by
Plaintiff's counsel to Defendant that Plaintiff wished to
dismiss this action without prejudice. (Id. at 2).
The Court, however, denied Defendant's request. (Doc. 10
at 2). The Court stated that “if Plaintiff wishes to
dismiss this action, a notice of voluntary dismissal under
Federal Rule of Civil Procedure 41(a)(1)(A)(ii) signed by all
parties who have appeared must be filed.”
(Id.). Thereafter, Plaintiff did not file anything
in this action or otherwise indicate that it wishes this
action to proceed.
21, 2018, the Court issued an Order to Show Cause to
Plaintiff why this action should not be dismissed for failure
to prosecute. (Doc. 11). At that time, the Court noted that
the parties had failed to submit a timely Case Management
Report and that Plaintiff had not filed anything in this
action or otherwise indicated that it wishes this action to
proceed. (Id. at 1-2). Because Plaintiff had not
filed anything in this action or otherwise indicated that it
wishes this action to proceed, the Court required Plaintiff
to show cause why this action should not be dismissed for
failure to prosecute within fourteen (14) days from the date
of the Order. (Id. at 2). The Court warned Plaintiff
that, if it failed to show cause within this time, then the
Undersigned would recommend that this action be dismissed for
failure to prosecute. (Id.). Plaintiff has failed to
file anything showing good cause or otherwise indicate it
wishes this action to proceed.
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 has further held 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 Univ., 693 F.2d 1353,
1354, 1358 (11th Cir. 1982)). The court also 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 not filed
anything in this action after removal. Additionally,
Plaintiff expressly failed to comply with the Order to Show
Cause. At this point, because Plaintiff has failed to comply
with this Court's Order and has otherwise made no showing
in any respect that it wishes this action to proceed, the
Undersigned can only view Plaintiffs actions as willful delay
or abandonment warranting dismissal for failure to prosecute.
the Undersigned RESPECTFULLY RECOMMENDS that
Plaintiff Air Quality Assessors, LLC's Complaint (Doc. 2)
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 conclusion
the district judge adopts from the Report and Recommendation.
See 11th Cir. R. 3-1.