King v. National Security Group, Inc.
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 1/5/2016. (JLC)
2016 Jan-05 PM 12:15
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
PEARLEEN MCNEELY KING,
NATIONAL SECURITY GROUP,
) Case No.: 2:15-CV-1985-VEH
Introduction and Procedural History
On November 3, 2015, Plaintiff Pearleen McNeely King (“Ms. King”), who is
proceeding pro se, initiated this action against Defendant National Security Group,
Inc. (“NSG”) (Doc. 1). Perceiving multiple problems with Ms. King’s pleading, on
November 9, 2015, the court ordered Ms. King (i) to replead her claims and (ii) either
to pay the civil filing fee, or to show cause why she should not be so required. (Doc.
4 at 3).
The court gave Ms. King 45 days–or until December 28, 20151–in which to
comply with its order. Id. The court further expressly warned Ms. King that her
The 45th day actually ran on December 24, 2015, but the court was not open to accept nonelectronic filings until December 28, 2015.
failure “to file an amended complaint that comports with the requirements of this
order and the Federal Rules of Civil Procedure will result in this action being
dismissed without prejudice, sua sponte.” Id.
The record shows that Ms. King received the court’s repleader order on or
before November 17, 2015 (Doc. 5) and yet her repleader deadline has passed without
any filing or payment from Ms. King. Under such circumstances and as explained
more fully below, the court concludes that Ms. King’s case against NSG is due to be
dismissed without prejudice sua sponte.
As the foregoing procedural history reveals, Ms. King has neither complied
with the requirement that she replead her claims nor provided any explanation to the
court for this non-compliance. Ms. King also has neither paid her filing fee nor
showed cause to the court why she should not be required to do so. Under the Federal
Rules of Civil Procedure, “[i]f 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.” Fed. R. Civ. P. 41(b).
Further, case law reinforces that, as a result of Ms. King’s failure to comply
with the repleader order, pay her filing fee, or otherwise indicate an intent that she
still wishes to pursue claims against NSG (e.g., such as by seeking an extension of
time in which to restate her claims or pay her filing fee), the court possesses the
inherent power to dismiss her case sua sponte. See Link v. Wabash Railroad Co., 370
U.S. 626, 630-31, 82 S. Ct. 1386, 1389, 8 L. Ed. 2d 734 (1962) (“The authority of a
court to dismiss sua sponte for lack of prosecution has generally been considered an
‘inherent power,’ governed not by rule or statute but by the control necessarily vested
in courts to manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.”); see also Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.
1985) (“The court’s power to dismiss is an inherent aspect of its authority to enforce
its orders and insure prompt disposition of lawsuits.” (citing Link, 370 U.S. at 630-31,
82 S. Ct. at 1388-89)); cf. Gratton v. Great American Communications, 178 F.3d
1373, 1374 (11th Cir. 1999) (recognizing that court has broad authority under Rule
37 to control discovery and enforce its orders); cf. also Fed. R. Civ. P. 1 (“[These
rules] should be construed and administered to secure the just, speedy, and
inexpensive determination of every action and proceeding.”) (emphasis added).
“While dismissal is an extraordinary remedy, dismissal upon disregard of an
order, especially where the litigant has been forewarned, generally is not an abuse of
discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (emphasis added)
(citing State Exchange Bank v. Hartline, 693 F.2d 1350, 1352 (11th Cir. 1982)). Here,
by virtue of the court’s order requiring her to replead and address the omitted filing
fee issue, Ms. King was put on notice that the court would consider dismissing her
case for lack of prosecution if she failed to timely and adequately comply (Doc. 4 at
3) and, nonetheless, she ignored that warning and filed nothing that was responsive
to the court’s concerns.2 “[A] plaintiff who ignore[s] notices and orders of the court
[is not] excused merely because of her pro se status.” Moon, 863 F.2d at 838 n.5
(citing Anthony v. Marion County General Hospital, 617 F.2d 1164, 1169 (5th Cir.
1980));3 see also Moon, 863 F.2d at 837 (“[O]nce a pro se IFP litigant is in court,
[s]he is subject to the relevant law and rules of court, including the Federal Rules of
Guided by the foregoing legal framework, the court concludes that dismissing
Ms. King’s action against NSG “without prejudice” (rather than “with prejudice”) is
the most appropriate measure to take, especially as Ms. King is representing herself.
Cf. Phipps v. Blakeny, 8 F.3d 788, 790-91 (11th Cir. 1993) (“When the record clearly
demonstrates that a plaintiff deliberately and defiantly refused to comply with several
court orders on discovery and tells the court that [s]he will not comply in the future,
On December 4, 2015, Ms. King did file a non-responsive and procedurally-puzzling
“Motion Demanding Default Judgment, Default Judgment and Notice of Official Misconduct and
Permanent Disability” (Doc. 6), seeking to obtain a default judgment against NSG (who remains
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.
a district judge has the authority to deny that plaintiff further access to the court to
pursue the case.”). Simply put, a “without prejudice” dismissal means that the merits
of Ms. King’s claims against NSG, if any, are not barred from further litigation by
such an order. Additionally, a “without prejudice” dismissal is consistent with the
above language of the court’s prior warning to Ms. King in the event that she failed
to replead her claims and address the status of her unpaid filing fee in the manner
required by the court. (Doc. 4 at 3).
Therefore, Ms. King’s claims against NSG are due to be dismissed without
prejudice due to her failure to prosecute as provided for under the Federal Rules of
Civil Procedure and the express requirements of this court’s November 9, 2015, order
for repleader. Further, as a result of this dismissal, Ms. King’s “Motion Demanding
Default Judgment, Default Judgment and Notice of Official Misconduct and
Permanent Disability” (Doc. 6) filed on December 4, 2015, is due to be termed as
moot. The court will enter a separate order in conformance with this memorandum
DONE and ORDERED this the 5th day of January, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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