United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
Michael J. Frank United States Magistrate Judge
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.
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
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.).
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
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
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.
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.
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
recommending dismissal, the undersigned has taken into
consideration the following seven factors, among others:
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.
The Plaintiff's failure to comply with multiple
orders. The Plaintiff has failed ...