Johnson v. Omni Insurance Company
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 5/10/2016. (JLC)
2016 May-10 PM 02:45
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MILDRED B. JOHNSON,
OMNI INSURANCE COMPANY,
) Case No.: 2:16-CV-0523-VEH
Introduction and Procedural History
Plaintiff Mildred B. Johnson (“Ms. Johnson”), who is proceeding pro se,
initiated this action on March 31, 2016, against Defendant Omni Insurance Company
(“Omni”). (Doc. 1). Perceiving multiple problems with Ms. Johnson’s complaint, on
April 1, 2016, the court ordered her to replead her claims no later than May 2, 2016.
(Doc. 5 at 5). In this same order, the court denied her request for the appointment of
counsel and deferred ruling on her in forma pauperis request. (Id. at 5-6).
The court further expressly warned Ms. Johnson that her “failure to replead
her allegations in a manner that adequately addresses the jurisdictional and
pleading deficits identified by the court will result in the dismissal of her lawsuit
without prejudice for lack of subject matter jurisdiction and/or the failure to
prosecute.” (Doc. 5 at 5).
The record shows that the clerk mailed Ms. Johnson a copy of the court’s order
requiring repleader order on April 1, 2016 (see CM/ECF entry dated Apr. 1, 2016,
indicating “Order mailed to Plaintiff as directed . . . .”), and yet her repleader deadline
has passed without any filing from Ms. Johnson. Under such circumstances and as
explained more fully below, the court concludes that Ms. Johnson’s case against
Omni is due to be dismissed without prejudice sua sponte.
As the foregoing procedural history reveals, Ms. Johnson has neither complied
with the requirement that she replead her claims nor provided any explanation to the
court for this non-compliance. 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. Johnson’s failure to comply
with the repleader order or otherwise indicate an intent that she still wishes to pursue
claims against Omni (e.g., such as by seeking an extension of time in which to restate
her claims), 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, administered,
and employed by the court and the parties 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, Ms. Johnson was put on notice
that the court would consider dismissing her case for lack of subject matter
jurisdiction and/or prosecution if she failed to timely and adequately comply (Doc.
5 at 5) and, nonetheless, she ignored that warning and filed nothing. “[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));1 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 Civil Procedure.”).
Guided by the foregoing legal framework, the court concludes that dismissing
Ms. Johnson’s action against Omni “without prejudice” (rather than “with prejudice”)
is the most appropriate measure to take, especially as Ms. Johnson 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, 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. Johnson’s claims against Omni, if any, are not barred from further
litigation by such an order. Additionally, a “without prejudice” dismissal is consistent
with the above wording of the court’s prior warning to Ms. Johnson in the event that
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.
she failed to replead her claims in the manner required by the court.2 (Doc. 5 at 5).
Therefore, Ms. Johnson’s claims against Omni are due to be dismissed without
prejudice for lack of subject matter jurisdiction and/or her failure to prosecute as
provided for under the Federal Rules of Civil Procedure and the express requirements
of this court’s April 1, 2016, order to replead. Further, as a result of this dismissal,
Ms. Johnson’s deferred request to proceed in forma pauperis (Doc. 2) filed on March
31, 2016, is due to be termed as moot. The court will enter a separate order in
conformance with this memorandum opinion.
DONE and ORDERED this 10th day of May, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
A jurisdictional dismissal is only appropriately entered as a “without prejudice” one. See
Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1235 (11th Cir. 2008)
(affirming district court dismissal for lack of jurisdiction but reversing and remanding for entry of
dismissal “without prejudice” rather than “with prejudice” as incorrectly entered originally).
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