Klemm v. CAB Asset Management LLC

Filing 8

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 08/30/12. (CVA)

FILED
2012 Aug-30 AM 11:31
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

DEBBIE KLEMM,
Plaintiff,
v.
CAB ASSET MANAGEMENT, LLC,
Defendant.

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Civil Action Number:
7:11-cv-0889-PWG

MEMORANDUM OPINION
This is an action brought pursuant to the Fair Debt Collection Practices Act,
15 U.S.C. § 1692 et seq. On June 13, 2011, Plaintiff Debbie Klem, through counsel,
filed a motion for entry of default against the Defendant, CAB Asset Management,
LLC, under Rule 55(a), Fed. R. Civ. P. (Doc. 5). On June 14, 2011, the clerk entered
such default based on Defendant’s failure to appear or otherwise defendant. (Doc.
6). More than one year later, on June 27, 2012, with nothing having occurred in the
case in the interim, the court entered an order requiring Plaintiff to show cause why
the action is not due to be dismissed without prejudice for want of prosecution. (Doc.
7). The court further advised that a motion for entry of a default judgment under Rule
55(b), Fed. R. Civ. P., would also be an adequate response. (Id.) Plaintiff’s deadline
to respond to the show cause order, July 11, 2012, has come and gone with nothing

being filed.
While it is the policy of the federal courts to favor disposition of cases on their
merits, Varnes v. Local 91, Glass Bottle Blowers Ass’n, 674 F.2d 1365, 1371 (11th
Cir. 1982), there are circumstances in which courts may be required to exercise their
authority in a manner that conflicts with that principle, as when a default judgment
is entered against a defendant. See African Methodist Episcopal Church, Inc. v.
Ward, 185 F.3d 1201, 1203 (11th Cir. 1999). Likewise, a court may dismiss a
plaintiff’s action sua sponte for lack of prosecution. Link v. Wabash R.R. Co., 370
U.S. 626, 630-31 (1962); Equity Lifestyle Properties, Inc. v. Florida Mowing &
Landscape Serv., Inc., 556 F.3d 1232, 1240 (11th Cir. 2009). Whether to impose
sanctions and their degree are matters committed to the discretion of the district court.
Equity Lifestyle, 556 F.3d at 1240. However, “dismissal of a case with prejudice is
considered a sanction of last resort, applicable only in extreme circumstances.”
Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006) (quoting Goforth v. Owens,
766 F.2d 1533, 1535 (11th Cir. 1985)). Such a sanction is not proper unless “the
district court finds a clear record of delay or willful conduct and that lesser sanctions
are inadequate to correct such conduct.” Id. (quoting Betty K Agencies, Ltd. v. M/V
Monada, 432 F.3d 1333, 1339 (11th Cir. 2005)). Thus, it is common in cases
involving simple failure to prosecute or where it does not appear that the party, rather
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than its attorney, may be at fault for a court to dismiss without prejudice. See Justice
v. United States, 6 F.3d 1474, 1477 (11th Cir. 1993); see also Betty K Agencies, 432
F.3d at 1341; 9 C. Wright, A. Miller, M. Kane & R. Marcus, Fed. Prac. & Proc. Civ.
§ 2370 (3d ed.) (“[A]ppellate courts do not look favorably on a dismissal with
prejudice [for want of prosecution] if there are lesser sanctions that could vindicate
the purposes of Federal Rule 41(b), including the desire to avoid court congestion.”
(footnotes omitted)).
Here, after moving for and being granted an entry of default by the clerk under
Rule 55(a), Fed. R. Civ. P., Plaintiff took no further action in the case for more than
a year. The court thereafter entered a show cause order inviting Plaintiff to file a
motion for a default judgment pursuant to Rule 55(b) but warning that if Plaintiff
failed to do so, the action would be subject to dismissal for want of prosecution.
Plaintiff has failed to respond to that show cause order. Therefore, the court
concludes that this action is due to be DISMISSED WITHOUT PREJUDICE, as such
sanction is appropriate and necessary to vindicate the court’s interest in managing its
docket. A separate final order will be entered.
DONE the 30th day of August, 2012.
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ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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