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Demps v. Hillsborough County Clerk of the Circuit Court

United States District Court, M.D. Florida, Tampa Division

January 14, 2020

ANGEL V. DEMPS, Plaintiff,


          Charlene Edwards Honeywell United States District Judge.

         This 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.

         I. BACKGROUND

         The 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. 19.

         Plaintiff 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.

         Also, 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).

         On 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. Doc. 25.


         A. Dismissal for Lack of Prosecution is Not Warranted

         Rule 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 omitted).

         Defendant 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.

         The 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 ...

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