Allen v. Cypress Village, LTD. et al
RECOMMENDATION OF THE MAGISTRATE JUDGE and ORDER: it is the RECOMMENDATION of the Magistrate Judge that the dfts' oral motion to dismiss be GRANTED and that this case be dismissed for the plf's abandonment of her claims, failure to prosecut e this action and failure to comply with the orders of the court; further ORDERED that the dfts' 79 Motion for a Mental Evaluation be and is hereby DENIED as moot; Objections to R&R due by 7/25/2012. Signed by Honorable Judge Charles S. Coody on 7/11/2012. Copy mailed to plf. (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CHARISSE D. ALLEN,
CYPRESS VILLAGE, LTD, et al.,
CIVIL ACT. NO. 3:10cv994-WKW
RECOMMENDATION OF THE MAGISTRATE JUDGE and ORDER
On January 5, 2012, this matter was set for a status and scheduling conference on May
15, 2012. (Doc. # 76). On May 15, 2012, the plaintiff informed the court that she was
unable to attend the hearing. See Doc. # 81. The court continued the status and scheduling
conference until June 12, 2012, and directed the plaintiff to personally appear at that time.
(Id.) The plaintiff was specifically cautioned that if she failed to appear as required by the
order, the court would treat her failure to appear as an abandonment of the claims set forth
in the complaint and as a failure to prosecute this action and the undersigned would
recommend that this case be dismissed for such failure.
On June 11, 2012, the plaintiff filed a motion to reschedule the June 12, 2012, status
and scheduling conference. (Doc. # 83). On June 12, 2012, the court granted the plaintiff’s
motion to continue and reset the status and scheduling conference to July 10, 2012. The
court specifically advised the plaintiff of the ramifications if she failed to appear as directed
by the court.
The plaintiff filed this action and has a duty to prosecute her case. Part of that
duty involves appearing in court. No further continuances will be granted.
The plaintiff is specifically advised that if she fails to appear as required by
this order, the court will treat her failure to appear as a failure to prosecute and
will recommend dismissal of this case.
(Doc. # 84).
On July 10, 2012, the plaintiff did not appear at the status and scheduling conference.1
At the hearing, the defendants orally moved to dismiss this case for the plaintiff’s failure to
prosecute her case.
“A district court has inherent authority to manage its own docket ‘so as to achieve the
orderly and expeditious disposition of cases.’” Equity Lifestyle Props., Inc. v. Fla. &
Landscaping Serv., Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (quoting Chambers v. NASCO,
Inc., 501 U.S. 32, 43 (1991)). A district court has discretion to dismiss an action “[i]f the
plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court
order.” FED.R.CIV.P. 41(b). “The court’s power to dismiss [under Rule 41(b)] is an inherent
aspect of its authority to enforce its orders and insure disposition of lawsuits.” Goforth v.
Owens, 766 F.2d 1533, 1535 (11th Cir. 1985) (citing Link v. Wabash Railroad Co., 370 U.S.
626, 630-31 (1962); Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)). “‘The power
to invoke this sanction is necessary in order to prevent undue delays in the disposition of
pending cases and to avoid congestion in the calendars of the District Court.’” Equity
Lifestyle, 556 F.3d at 1240 (quoting Durham v. Fla. E. Coast Ry. Co., 385 F.2d 366, 367 (5th
Also pending before the court is the defendant’s motion for a mental evaluation (doc. # 79). In
light of the plaintiff’s failure to prosecute this case, this motion will be denied as moot.
Whether to dismiss a complaint under Rule 41(b) “is a matter committed to the district
court’s discretion.” Id. at 1240 n.14 (citing Gratton v. Great Am. Commc’ns, 178 F.3d 1373,
1374 (11th Cir. 1999)). It is apparent that Allen has failed to prosecute this case. She is the
plaintiff; the claims are her claims, and if she will not pursue them, there is nothing left for
the court to do but dismiss them. Justice will not be served by allowing this case to stagnate
on the court’s docket while subjecting the defendants to prolonged uncertainty and additional
legal costs on the unfounded hope that Allen will someday desire to pursue her complaint.
See Goforth, 766 F.2d at 1535 (holding that lesser sanctions than dismissal “would not have
served the interests of justice” where further delay would have only served to punish the
The district judge is not required to ignore a litigant’s voluntary absence from
the hearing set in [her] case and continuously reset hearings on the chance that
the litigant may later decide to attend one. If it is clear that a moving party
deliberately failed to appear at a hearing on the issues [s]he raises, dismissal
is appropriate whether or not it further appears that it might have suited h[er]
convenience to appear should one be later set.”
Clark v. James, 794 F.2d 595, 597 (11th Cir. 1986). See also Anthony v. Marion County Gen.
Hosp., 617 F.2d 1164, 1167-69 (5th Cir. 1980) (“[E]ven a non-lawyer should realize the peril
to her case, when she . . . ignores numerous notices, and fails to attend hearings and
depositions.”) Consequently, the court concludes that the plaintiff’s abandonment of her
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
claims, her failure to comply with the orders of this court and her failure to prosecute this
cause of action warrant dismissal of this case.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the
defendants' oral motion to dismiss be GRANTED and that this case be dismissed for the
plaintiff’s abandonment of her claims, failure to prosecute this action and failure to comply
with the orders of the court. It is further
ORDERED that the defendants' motion for a mental evaluation (doc. # 79) be and is
hereby DENIED as moot. Finally, it is
ORDERED that the parties shall file any objections to the said Recommendation on
or before July 25, 2012. Any objections filed must specifically identify the findings in the
Magistrate Judge’s Recommendation to which the party objects. Frivolous, conclusive or
general objections will not be considered by the District Court. The parties are advised that
this Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file written objections to the proposed findings and recommendations in the
Magistrate Judge's report shall bar the party from a de novo determination by the District
Court of issues covered in the report and shall bar the party from attacking on appeal factual
findings in the report accepted or adopted by the District Court except upon grounds of plain
error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein
v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of
Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the
decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981.
Done this 11th day of July, 2012.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?