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Emerson v. Mastec Inc.

United States District Court, N.D. Florida, Pensacola Division

May 20, 2019

MARTIN EMERSON, Plaintiff,
v.
MASTEC INC., Defendant.

          REPORT AND RECOMMENDATION

          Michael J. Frank United States Magistrate Judge

         The clerk of the court referred this case to the undersigned. Plaintiff was directed to file a notice indicating his intent to pursue this action, (Doc. 15), and has not done so. For the following reasons, the undersigned recommends that the present action be DISMISSED without prejudice for failure to comply with a court order and failure to prosecute.[1]

         I. Background

         Plaintiff filed this action in the Circuit Court for the First Judicial Circuit, Escambia County, Florida. Plaintiff sought damages, prejudgment interest and attorney's fees based on allegations that Defendant discriminated and retaliated against him in violation of 42 U.S.C. § 1981, et seq. Defendant removed the action to the United States District Court for the Northern District of Florida. (Doc. 1 at 1).

         On December 20, 2018, United States District Court Judge M. Casey Rodgers issued an initial scheduling order directing “counsel of record and any unrepresented parties” to “confer (personally, by phone, or electronically) within 30 days from the date of” the initial scheduling order. (Doc. 2). The order directed the Plaintiff to initiate arrangements for the conference and the filing of the Joint Report. (Id.).

         On February 15, 2019, the Defendant filed a motion to compel arbitration. (Doc. 11). On March 11, 2019, after Plaintiff had not responded to this motion, the undersigned offered the Plaintiff an opportunity to respond and reminded him that a failure to respond would be understood as a lack of opposition to Defendant's motion. (Doc. 13). Plaintiff never responded.

         On February 26 and March 1, 2019, the Defendant attempted to contact the Plaintiff via email to confer on the joint scheduling report. (Doc. 12). Although Defendant provided Plaintiff more than 24 hours to respond, Plaintiff did not respond to the Defendant's emails and did not confer with Defendant. (Id.).

         On March 28, 2019, the undersigned ordered Plaintiff to show cause for his failure to comply with the court's initial scheduling order. (Doc. 14). Plaintiff's deadline to show cause was April 11, 2019. To date, Plaintiff has not responded to this order.

         On May 1, 2019, the undersigned issued an order directing Plaintiff to file a notice indicating whether he still desired to pursue this case. (Doc. 15). The undersigned gave Plaintiff a deadline of May 15, 2019 to respond. The undersigned specifically warned the Plaintiff that failure to comply with the order likely would result in dismissal of this action for failure to prosecute and failure to comply with court orders. (Doc. 15). To date, Plaintiff has not responded.

         II. Discussion

         “A federal court has at its disposal an array of means to enforce its orders, including dismissal in an appropriate case.” Degen v. United States, 517 U.S. 820, 827, 116 S.Ct. 1777, 1782 (1996). “Federal courts possess an inherent power to dismiss a complaint for failure to comply with a court order.” Foudy v. Indian River Cty. Sheriff's Office, 845 F.3d 1117, 1126 (11th Cir. 2017); Equity Lifestyle Properties, Inc. v. Florida Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (“The court may dismiss a claim if the plaintiff fails to prosecute it or comply with a court order.”); see Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89 (1962) (noting the inherent power of courts to dismiss an action is not precluded by Fed.R.Civ.P. 41(b)). Courts may sua sponte dismiss cases for failure to comply with court orders and for failure to prosecute an action. Costello v. United States, 365 U.S. 265, 286-87, 81 S.Ct. 534, 545 (1961) (noting that a district court may sua sponte dismiss a complaint for a plaintiff's failure to comply with an order of the court); Snider v. Melindez, 199 F.3d 108, 112 (2d Cir. 1999) (noting that the Supreme Court has “long held that courts may dismiss actions on their own motion in a broad range of circumstances”).

         In recommending dismissal, the undersigned has taken into consideration the following seven factors, among others:

         (1) The duration of the Plaintiff's failure to comply. Judge Rodgers issued her order on December 20, 2018, and gave the parties thirty days to confer and an additional fourteen days thereafter to file the joint report. Plaintiff failed to respond to Defendant's attempts to initiate conferral. On March 28, 2019, the undersigned issued an order to show cause as to why Plaintiff failed to comply with Judge Rodgers's order and provided Plaintiff fourteen days to respond. Because Plaintiff failed to respond the undersigned issued a subsequent order on May 1, 2019, directing the Plaintiff to indicate whether he intended to pursue this action. The undersigned provided Plaintiff fourteen days to respond. Plaintiff has not yet responded.

         (2) The Plaintiff's failure to comply with multiple orders. The Plaintiff has failed ...


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