United States District Court, M.D. Florida, Fort Myers Division
REPORT AND RECOMMENDATION
NICHOLAS P. MIZELL UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on the Order to Show Cause,
entered on September 30, 2019. (Doc. 81). The Order to Show
Cause required Plaintiff Jason Ifill to show good cause in
writing why this action should not be dismissed for failure
to appear at a hearing when required and for failure to
prosecute. The Court cautioned Plaintiff that if he did not
respond to the Order to Show Cause, the Court would recommend
that this action be dismissed. Plaintiff did not respond to
the Order to Show Cause and, thus, the Court recommends that
this action be dismissed for failure to prosecute. A brief
background and procedural history follow.
27, 2019, Plaintiff filed an Amended Complaint alleging race
discrimination under Title VII and the Florida Civil Rights
Act against Defendants United States Sugar Corp. (“U.S.
Sugar”), International Association of Machinists and
Aerospace Workers, Local Lodge 57 (“Local 57”),
T.J. Graham, and Mark Osborn. (Doc. 58). Plaintiff alleges
that he worked as a dump operator for U.S. Sugar and
Defendant Graham was his supervisor. (Id., p. 6,
¶¶ 18-19). He further alleges that while employed
with U.S. Sugar, he was a member of Local 57 and Osborn was
his union steward. Plaintiff claims that “the
termination of a black man shortly after his assertive, but
non-violent response to a white supervisor's aggressive,
threatening and racially tinged behavior directed as Mr.
Ifill's ‘black ass' gives rise to an inference
of race discrimination.” (Id., p. 7 ¶
27). Thus, the thrust of the Amended Complaint relates to the
actions of a U.S. Sugar employee.
Defendants Graham and U.S. Sugar filed Answers and
Affirmative Defenses. (Docs. 59, 64). Local 57 filed a Motion
to Dismiss that remains pending, and Plaintiff has apparently
failed to serve Osborn with process. (Doc. 61).
Plaintiff's counsel, William Amlong, Karen Amlong, and
Barbara Goolsby filed a motion to withdraw and a motion to
extend the deadline to respond to the motion to dismiss until
after the issues related to Plaintiff's counsel are
resolved. (Docs. 70, 71). And in the meantime, with respect
to U.S. Sugar and Graham, Plaintiff filed a Notice of
Voluntary Dismissal (Doc. 72). With U.S. Sugar and Graham
stipulating to the dismissal, the Court dismissed U.S. Sugar
and Graham with prejudice. (Doc. 75).
left only Local 57 and Defendant Osborn in the lawsuit. The
Court set a hearing on September 26, 2019, concerning
Plaintiff counsels' motion to withdraw and the failure to
serve Osborn with process. (Doc. 77). The Court required -
among other things - that Plaintiff appear in person for the
hearing and that Plaintiff's counsel send a copy of the
Order and Notice of Hearing by U.S. mail and email to
Plaintiff. (Id., pp. 2-3). The Court cautioned
Plaintiff that if he failed to appear for the hearing,
“the Court will consider this non-appearance as a
failure to prosecute this action and may recommend that this
action be dismissed for failure to prosecute.”
(Id. at 3). Plaintiff's counsel filed a Notice
of Service and Compliance with the Order, indicating that
counsel emailed and sent a copy of the Order and Notice to
Plaintiff. (Doc. 83).
on Plaintiff's failure to appear, the Court entered an
Order to Show Cause. (Doc. 81). The Court explained again
that by not appearing at the hearing, Plaintiff is not
diligently prosecuting his case. The Court afforded
Plaintiff-who remains represented by three lawyers at two law
firms-an opportunity to show good cause in writing by October
18, 2019, as to why this action should not be dismissed for
failure to appear and for failure to prosecute.
(Id., p. 2). Plaintiff's counsel filed a notice
of service of the Order to Show Cause on Plaintiff. (Doc.
82). Plaintiff did not respond to the Order to Show Cause.
to Local Rule 3.10, “[w]henever it appears that any
case is not being diligently prosecuted the Court may, on
motion of any party or on its own motion, enter an order to
show cause why the case should not be dismissed, and if no
satisfactory cause is shown, the case may be dismissed by the
Court for want of prosecution.” M.D. Fla. R. 3.10. By
failing to appear and failing to respond to court orders,
Ifill has not shown that he is diligently prosecuting his
case. Therefore, the Court recommends that this action be
dismissed for lack of prosecution.
it is respectfully RECOMMENDED:
This action be dismissed for lack of prosecution.
That all motions and deadlines be terminated.
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.