Progressive Direct Insurance Company, Inc. v. Harris et al

Filing 5

MEMORANDUM OPINION Signed by Judge Virginia Emerson Hopkins on 12/13/17. (SAC )

FILED
2017 Dec-13 PM 02:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
PROGRESSIVE DIRECT
INSURANCE COMPANY, INC.,
a/s/o Katelyn M. Avila and Antonio
Buchanan Avila,

)
)
)
)
)
Plaintiff,
)
)
v.
) Case No.: 4:17-CV-1110-VEH
)
SHARON MAULDIN HARRIS and )
UNITED STATES POSTAL
)
SERVICE,
)
)
Defendants.
)

MEMORANDUM OPINION
I.

INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff Progressive Direct Insurance Company, Inc. (“Progressive”) initiated

this lawsuit on June 30, 2017, against Defendants Sharon Mauldin Harris and the
United States Postal Service (“USPS”). (Doc. 1). The litigation involves one count
for negligence. (Doc. 1 at 3-4).
Because Progressive failed to perfect service on either of the Defendants, on
November 28, 2017, the Court entered an order directing Progressive to show good
cause within 11 days why this action should not be dismissed pursuant to Rule 4(m).
(Doc. 4 at 1); see also FED. R. CIV. P. 4(m) (“If a defendant is not served within 90

days after the complaint is filed, the court—on motion or on its own after notice to
the plaintiff—must dismiss the action without prejudice against that defendant or
order that service be made within a specified time.”). Under Rule 4(m), the 90-day
deadline to serve the Defendants, as measured by the date of the Complaint, expired
on September 28, 2017.
The Court’s 11-day show cause deadline ran on December 11, 2017.
Progressive has not filed a response, perfected service, or otherwise demonstrated
good cause as required by the Court. Consequently, this action is due to be dismissed
without prejudice sua sponte.
II.

ANALYSIS
As the foregoing procedural history reveals, Progressive has neither complied

with Rule 4(m), nor provided any explanation for this non-compliance. Case law
reinforces that, as a result of Progressive’s failure to even attempt to comply with the
order or otherwise indicate an intent to pursue claims against the Defendants (e.g.,
such as by seeking an extension of time in which to perfect service), the Court
possesses the inherent power to dismiss the action 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
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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. 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 Order To Show Cause, Progressive was put on notice that the Court
was considering whether to dismiss the action for lack of prosecution and,
nonetheless, Progressive entirely ignored that warning.
Guided by the foregoing authorities, the Court concludes that dismissing
Progressive’s action without prejudice is the most appropriate action.

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III.

CONCLUSION
By separate order, this case is hereby DISMISSED WITHOUT PREJUDICE

sua sponte due to Progressive’s failure to prosecute.
DONE and ORDERED this 13th day of December, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge

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