United States District Court, M.D. Florida, Tampa Division
ANGEL V. DEMPS, Plaintiff,
HILLSBOROUGH COUNTY CLERK OF THE CIRCUIT COURT, Defendant.
Charlene Edwards Honeywell United States District Judge.
cause is before the Court upon Plaintiff's response to
the Court's Order to Show Cause (Doc. 21);
Plaintiff's Motion for Referral to Mediation (Doc. 18)
and Defendant's response in opposition (Doc. 23); and
Defendant's Opposed Amended Motion to Dismiss for Failure
to Prosecute (Doc. 25) and Plaintiff's response in
opposition (Doc. 27). Upon consideration, the Court will
discharge the Order to Show Cause, deny Plaintiff's
motion, and deny Defendant's motion. The Court will order
Plaintiff's counsel to pay Defendant's attorneys'
fees and costs of attending the scheduled mediation at which
Plaintiff failed to appear, and will refer the parties to
mediation as required under the Court's Local Rules and
Case Management and Scheduling Order.
Court's Case Management and Scheduling Order
(“CMSO”) requires the parties to participate in
good faith in mediation by October 1, 2019. Doc. 12 at pp. 2,
9. On March 15, 2019, Defendant filed a Notice of Mediation
in accordance with the Court's CMSO, advising the Court
that the parties had conferred and scheduled mediation for
September 5, 2019 at 9:30 a.m. at the offices of Peter J.
Grilli in Tampa, Florida. Doc. 13. In the Mediation Report
filed September 5, 2019, the mediator states that
Defendant's representative and counsel attended and
participated in mediation on the scheduled date and time, but
that Plaintiff did not appear. Doc. 17. Accordingly, the
Court ordered Plaintiff to show cause as to why she should
not be sanctioned for failing to appear at mediation. Doc.
filed her response to the Order to Show Cause, stating that
Plaintiff's counsel did not put the mediation conference
on his calendar and was in court on other matters that
morning. Doc. 21. Plaintiff's counsel states he was
unaware of the mediation until he returned to his office and
returned a missed call from the mediator's office.
Id. Plaintiff's counsel further states he
immediately requested the parties reschedule the mediation.
Id. He “accepts full responsibility for the
scheduling error” and that the Plaintiff is “not
responsible in any way for not appearing.” Id.
on September 11, 2019, Plaintiff filed a Motion for Extension
of Time to Complete/ Reschedule Mediation, stating that
Plaintiff's counsel “has attempted to reschedule
the mediation but opposing counsel is unwilling and has
requested that a motion is filed with the Court.” Doc.
18. Plaintiff's motion violates the Court's Local
Rules, as it does not include a memorandum of legal
authority. L.R. 3.01(a).
October 11, 2019, Defendant filed its Motion to Dismiss for
Failure to Prosecute on a number of bases, including
Plaintiff's failure to attend the scheduled mediation.
Dismissal for Lack of Prosecution is Not Warranted
41(b) of the Federal Rules of Civil Procedure provides:
If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the
action or any claim against it. Unless the dismissal order
states otherwise, a dismissal under this subdivision (b) and
any dismissal not under this rule-except one for lack of
jurisdiction, improper venue, or failure to join a party
under Rule 19-operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b). The rule “recognizes the
inherent authority of district courts to involuntarily
dismiss a claim . . . for want of prosecution to prevent
undue delays in the disposition of pending cases and to avoid
congestion of court calendars.” Abrams v. Orange
Cnty. Sheriff, No. 6:13-CV-1291-ORL-37, 2014 WL 3057107,
*2 (M.D. Fla. July 7, 2014). However, “to justify
dismissal with prejudice as a sanction under Rule 41(b),
‘[t]here must be both a clear record of willful conduct
and a finding that lesser sanctions are
inadequate.'” Brutus v. IRS, 393 Fed.Appx.
682, 684 (11th Cir. 2010) (quoting Zocaras v.
Castro, 465 F.3d 479, 483 (11th Cir. 2006)). “This
is true because dismissal with prejudice is ‘a sanction
of last resort, applicable only in extreme
circumstances.'” Id. (internal citation
moves the Court for an order dismissing Plaintiff's case
for lack of prosecution pursuant to Rule 41(b) based on
Plaintiff's alleged pattern of delay. Defendant points
to: Plaintiff's (1) failure to attend mediation, (2)
failure to file a certificate of interested persons and
corporate disclosure statement by the Court-imposed deadline,
(3) failure to provide her mandatory initial disclosures, (4)
initial failure to prosecute her case in state court, in
which plaintiff had proceeded pro se, and (5)
failure to appear for her deposition in a different case.
latter two instances cited by Defendant are not relevant here
because they refer to occurrences in other cases or before
Defendant was served in this case. The first three instances,
however, are relevant and are of great concern to the Court.
Nonetheless, the circumstances of this case do not presently
rise to the level warranting the “sanction of last
resort.” Although Plaintiff has apparently failed to
comply with a number of Court directives, including
attendance at mediation, she has not completely abandoned her
case. Plaintiff appeared for her deposition in this case on
July 16, 2019 and also deposed two of her own witnesses. Doc.
27 at ¶¶ 2-4. In addition, Plaintiff filed a motion
to reschedule mediation and timely responded to the