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Senecal v. Motel 6 Employees and Owners

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

November 13, 2019

MARY EVELYN SENECAL, Plaintiff,
v.
MOTEL 6 EMPLOYEES AND OWNERS, Defendants.

          REPORT AND RECOMMENDATION

          Michael J. Frank, United States Magistrate Judge

         The clerk of the court referred this case to the undersigned upon Plaintiff's failure to respond to the undersigned's order to show cause. For the reasons set forth below, the undersigned recommends that this civil action be dismissed without prejudice for failure to pay the filing fee and failure to comply with three court orders.[1]

         I. Background/Procedural Background

         On August 26, 2019, Plaintiff, proceeding pro se, commenced this action alleging that Motel 6 Staff overcharged her rent, abused her in four states, and “attempted murder.” (Doc. 1 at 4-6). Plaintiff also filed a motion to proceed in forma pauperis. (Doc. 2). In her motion, Plaintiff indicated that she had approximately $3, 000.00 in a saving account, she received $960.00 monthly from social security benefits, and her monthly expenses totaled only $735.00. (Doc. 2).

         On August 27, 2019, the undersigned denied Plaintiff's motion to proceed in forma pauperis because Plaintiff had failed to establish that she was entitled to so proceed. (Doc. 4). The undersigned directed Plaintiff to pay $400.00 (a $350.00 filing fee and a $50.00 administrative fee) on or before September 27, 2019. (Id.). The undersigned warned Plaintiff that her failure to comply with a court order likely would result in dismissal of this case. (Id.). This order was returned marked “return to sender, vacant, unable to forward.” (Doc. 5).

         After the time to comply had elapsed, the undersigned ordered Plaintiff to explain why she failed to comply with the undersigned's order. (Doc. 6). The undersigned provided Plaintiff until October 21, 2019, to respond. (Id.). The undersigned again warned Plaintiff that her failure to respond likely would result in dismissal. (Id.).

         Plaintiff failed to respond and the undersigned issued a second order to show cause. (Doc. 7). The undersigned imposed a deadline of November 12, 2019, and warned Plaintiff for a third time that her failure to comply likely would result in dismissal. This order was returned undeliverable. (Doc. 8). As of the date of this report and recommendation, Plaintiff has failed to comply with these three orders.

         III. Discussion

         The undersigned recommends that this court dismiss Plaintiff's complaint in light of Plaintiff's failure to: (1) pay the filing fee; and (2) comply with three court orders.

         A. Failure to Pay Filing Fee

         Rule 5.3 of the Local Rules for Northern District of Florida provides in relevant part: “A party who files or removes a civil case must simultaneously either pay any fee required under 28 U.S.C. § 1914 or move for leave to proceed in forma pauperis.” N.D. Fla. Loc. R. 5.3. Section 1914 authorizes the clerk of each district court to collect a filing fee from the party instituting any civil action, suit or proceeding in the district court. 28 U.S.C. § 1915.

         A court may dismiss an action for failure to pay the filing fee so long as the court first affords the plaintiff an opportunity to explain the failure. See Wilson v. Sargent, 313 F.3d 1315, 1320-21 (11th Cir. 2002); see also Thomas v. Butts, 745 F.3d 309, 312-13 (7th Cir. 2014). Additionally, Local Rule 41.1 for the Northern District of Florida provides that “the Court may strike a pleading, dismiss a claim, enter a default on a claim, take other appropriate action, or issue an order to show cause why any of these actions should not be taken” if a party fails to comply with an applicable rule or court order.

         Here, Plaintiff's motion for leave to proceed in forma pauperis was denied because Plaintiff possessed sufficient funds to pay the filing fee. Thus, the undersigned directed the Plaintiff to pay the filing fee in accordance with the Local Rules of the Northern District of Florida. The undersigned specifically warned Plaintiff that her failure to pay the filing fee likely would result in dismissal. After Plaintiff failed to pay the filing fee, the undersigned issued two orders to show cause and provided Plaintiff an opportunity to explain her failure. As of the date of this report and recommendation, Plaintiff has not paid the filing fee and has not offered an explanation for this failure. Therefore, the undersigned recommends that this action be dismissed for failure to pay the filing fee.

         B. Failure to Comply ...


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