Taylor et al v. Wal-Mart Stores East L P et al

Filing 34

ORDER granting 33 Motion for Order/extension of time to file application for entry of default and response to show cause. Plaintiffs to file application on or before 5/13/2011. Signed by Judge Kristi K. DuBose on 4/25/2011. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DOUGLAS TAYLOR and
TONYA TAYLOR,
Plaintiffs,
vs.
STRONGBUILT, INC., et al,
Defendants.

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CIVIL ACTION NO. 09-0806-KD-C

ORDER
This action is before the Court on the plaintiffs Douglas and Tonya Taylor’s motion to
show cause (doc. 33). Previously, plaintiffs were ordered to file either an application pursuant to
Rule 55(a)1 of the Federal Rules of Civil Procedure for the Clerk to enter default as to defendant
Strongbuilt International, LLC, (SBI), or show cause why an application for entry of default had
not been filed (doc. 34). Plaintiffs now respond that they “are still in the process of ascertaining
whether there is insurance coverage relative to” SBI “with regard to the incident in question.”
Plaintiffs request an additional forty-five (45) days to further investigate before filing an
application for entry of default. Upon consideration, the motion is GRANTED. Plaintiffs shall
file an application for entry of default on or before May 13, 2011.
Plaintiffs are warned that failure to file an application for entry of default may result in
dismissal without prejudice of this action against SBI for failure to prosecute. Rule 41(b) of the
Federal Rules of Civil Procedure provides, in relevant part, as follows:
(b) Involuntary Dismissal; Effect. If 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. Unless the dismissal order states otherwise, a dismissal under this
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Plaintiffs are reminded that obtaining a default judgment requires that the Clerk of the
Court first enter default on the record, see Fed. R. Civ. P 55(a), after which plaintiffs may move
for a default judgment. See Fed. R. Civ. P. 55(b).

subdivision (b) and any dismissal not under this rule--except one for lack of
jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an
adjudication on the merits.
Fed. R. Civ. P. Rule 41(b).
Although Rule 41(b) speaks to a motion to dismiss filed by the defendant, the Court has
the inherent power to dismiss an action sua sponte for failure to prosecute. See, e.g., Betty K
Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005); Link v. Wabash R. R., 370
U.S. 626, 630 (1962) (interpreting Rule 41(b) not to restrict the court’s inherent authority to
dismiss sua sponte an action for lack of prosecution); World Thrust Films, Inc. v. International
Family Entertainment, Inc., 41 F.3d 1454, 1456-1457 (11th Cir. 1995). One of the purposes
behind a sua sponte dismissal is “to prevent undue delays in the disposition of pending cases and
to avoid congestion in the calendars of the District Court.” Equity Lifestyle Props., Inc. v. Fla.
Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (quotation omitted).
However, before the Court may do so, it must first provide notice to plaintiffs that it is
considering dismissal of their action. In Tazoe v. Airbus S.A.S. 631 F.3d 1321, 1336 (11th Cir.
2011), the Court of Appeals explained that a “district court can only dismiss an action on its own
motion as long as the procedure employed is fair.” Tazoe, at 1336 (quoting Carroll v. Fort James
Corp., 470 F.3d 1171, 1177 (5th Cir.2006) (internal quotations omitted). “To employ fair
procedure, a district court must generally ‘provide the plaintiff with notice of its intent to dismiss
or an opportunity to respond.’” Tazoe, at 1336 (quoting Am. United Life Ins. Co. v. Martinez, 480
F.3d 1043, 1069 (11th Cir. 2007).
DONE and ORDERED this 25th day of April, 2011.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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