T.O.P.S. et al v. King et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/30/2015. (JLC)
2015 Jul-30 PM 12:02
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ALYCE LOUISE THOMAS, and
GREGORY WRIGHT, individually
and as representative of class,
THOMAS ALEXANDER KING, in
his official capacity as Municipal
Judge, City of Gadsden, and
DONALD GARY TUCKER, in his
official capacity as City Prosecutor,
City of Gadsden,
) Case No.: 4:15-CV-315-VEH
Introduction and Procedural History
Plaintiffs initiated this lawsuit on February 20, 2015. (Doc. 1). The complaint
seeks to “challenge what in essence is [allegedly] a debtor’s prison system created by
Defendants.” (Id. at 1).
On June 29, 2015, the clerk’s office notified Plaintiffs’ attorney of record, Eric
T. Hutchins (“Mr. Hutchins”), that because “he is not admitted to practice before this
Court[, he needed to obtain] the Court’s permission to appear Pro Hac Vice and pay
a $50.00 fee within ten (10) days of filing any pleading or paper.” (See CM/ECF staff
notes entry dated Mar. 9, 2015). Because Mr. Hutchins did not comply with this
notice from the clerk’s office, on June 29, 2015, the court entered an order (Doc. 15)
directing Plaintiffs to show cause why their case should not be dismissed due to their
counsel’s failure to qualify himself to properly appear before this court. (Id. at 2).
Within this same order, the court directed Plaintiffs to show cause about the
standing of Plaintiff The Ordinary People Society (“T.O.P.S.”) to bring an action
against Defendants pursuant to 42 U.S.C. § 1983 for any purported constitutional
injuries to it. Id. The deadline for Plaintiffs to respond to the two issues contained in
the court’s show cause order ran on July 13, 2015, and this date passed without any
timely filing from Plaintiffs.
Four days later, and without any acknowledgment that the filing was untimely,
on July 17, 2015, Plaintiffs filed a Motion Showing Cause Why Plaintiff’s Suit
Should Not Be Dismissed Without Prejudice Due to Counsel’s Failure To Qualify
Himself Properly To Appear Before the Court (Doc. 16) (the “Late Response”). As
explained more fully below, the court concludes that part of Plaintiffs’ case is due to
be dismissed without prejudice sua sponte.
As the foregoing procedural history reveals, when Plaintiffs’ initiated this
lawsuit, their counsel was not qualified to appear as an attorney of record before this
court. In their Late Response, Plaintiffs’ counsel reports that he “has filled out the
application for general admission . . . and is submitting the application to the Clerk
for the United States District Court for the Northern District of Alabama.” (Doc. 16
¶ 1). The clerk’s office has confirmed that on July 23, 2015, it received and processed
Mr. Hutchins’s promised application.
While Mr. Hutchins’s deficient status as counsel for Plaintiffs has now been
cured, the Late Response completely ignores that portion of the show cause order
which directed Plaintiffs to explain how Plaintiff T.O.P.S. has standing to pursue this
action. 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 Plaintiffs’ failure to indicate an
intent on the part of Plaintiff T.O.P.S. that it still wishes to pursue its claims against
Defendants (e.g., such as by seeking an extension of time in which to address the
standing of Plaintiff T.O.P.S.), the court possesses the inherent power to dismiss that
part of their 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 its show cause order, Plaintiffs were put on notice that the court was
considering whether to dismiss Plaintiff T.O.P.S.’s claims against Defendants due to
the absence of standing and, nonetheless, they (through their counsel) ignored that
warning, missed the show cause deadline, and filed an inadequate Late Response
(without even seeking leave to do so), the contents of which totally fail to address the
issue of standing identified by the court.
Furthermore, despite allowing Mr. Hutchins additional time to submit his
attorney application referenced in the Late Response, he still has, inexplicably, failed
to address Plaintiff T.O.P.S.’s standing. Cf. Moon, 863 F.2d at 838 n.5 (recognizing
that “a plaintiff who ignore[s] notices and orders of the court [is not] excused . . .”
even when such person is a pro se litigant (emphasis added) (citing Anthony v.
Marion County General Hospital, 617 F.2d 1164, 1169 (5th Cir. 1980)));1 cf. also
Moon, 863 F.2d at 837 (“[O]nce a pro se IFP litigant is in court, 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
Plaintiff T.O.P.S.’s claims against Defendants “without prejudice” (rather than “with
prejudice”) is the most appropriate measure to take, especially as that type of a
dismissal is the only one appropriate for jurisdictionally-driven rulings. See Stalley
ex rel. United States v. Orlando Regional Healthcare System, Inc., 524 F.3d 1229,
1232 (11th Cir. 2008) (“A dismissal for lack of subject matter jurisdiction is not a
judgment on the merits and is entered without prejudice.” (citing Crotwell v.
Hockman–Lewis Ltd., 734 F.2d 767, 769 (11th Cir. 1984))); Stalley, 524 F.3d at 1232
(“Because standing is jurisdictional, a dismissal for lack of standing has the same
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.
effect as a dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P.
12(b)(1).” (internal quotation marks omitted) (quoting Cone Corp. v. Fla. Dep’t of
Transp., 921 F.2d 1190, 1203 n.42 (11th Cir. 1991))); see also Hitt v. City of
Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (“Dismissal with prejudice for failure
to state a claim is a decision on the merits and essentially ends the plaintiff’s lawsuit,
whereas a dismissal on jurisdictional grounds alone is not on the merits and permits
the plaintiff to pursue his claim in the same or in another forum.”).
Additionally, such a dismissal is consistent with the express wording of the
court’s forewarning included in its show cause order. (See Doc. 15 at 2 (“Plaintiffs
are also HEREBY ORDERED to SHOW CAUSE . . . why T.O.P.S. should not be
dismissed without prejudice as a party plaintiff ….”)) (emphasis by underlining
Therefore, Plaintiff T.O.P.S.’s claims against Defendants are due to be
dismissed without prejudice due to its failure to demonstrate standing and,
alternatively, due to Plaintiffs’ failure to prosecute that part of their case as provided
for under the Federal Rules of Civil Procedure and the express requirements of this
court’s June 29, 2015, show cause order. The court will enter a separate order of
partial dismissal in conformance with this memorandum opinion.
DONE and ORDERED this the 30th day of July, 2015.
VIRGINIA EMERSON HOPKINS
United States District Judge
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