Jeannie Lee v. USA et al
Order dismissing this case without prejudice for failure to failure to comply with the service requirements of Rule 4(m), her failure to prosecute this action, her clear record of delay and contumacious conduct, and her failure to abide by the orders of this Court. Signed by Chief Judge William H. Steele on 2/19/2015. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
UNITED STATES OF AMERICA, et al.,
CIVIL ACTION 14-0123-WS-C
This matter comes before the Court sua sponte.
Plaintiff, Jeannie Lee, proceeding by and through counsel, commenced this lawsuit by
filing a Complaint (doc. 1) against the United States of America and the U.S. Department of
Agriculture nearly a year ago. The ensuing 11 months have been marked by a multiplicity of
judicial reminders, instructions, second chances, and opportunities for plaintiff to take
appropriate measures to join and serve the named defendants. Nonetheless, some 342 days after
the Complaint was filed, the court file remains devoid of evidence that plaintiff has served
process on defendants in a manner that comports with Rule 4(i), Fed.R.Civ.P.
In a detailed Order (doc. 18) entered on January 12, 2015, this Court pointed Lee to Rule
4(i), and explained precisely what she must do to perfect service of process on these federal
governmental defendants.1 The January 12 Order went on express dismay at plaintiff’s
“protracted delay” in completing “the basic, necessary steps” required to serve process on
defendants. (Doc. 18, at 4.) The Order characterized such an inordinate interval as “contrary to
Indeed, the January 12 Order set forth Lee’s service of process obligations in
clear, step-by-step terms as follows: “Lee has not properly served process on the USDA unless
she has done all of the following: (i) mailed the summons and complaint to the agency directly;
(ii) mailed or delivered the summons and complaint to the U.S. Attorney’s Office for the
Southern District of Alabama; and (iii) mailed the summons and complaint to the Attorney
General in Washington, D.C.” (Doc. 18, at 3 n.3.) With respect to defendant United States, the
January 12 Order also furnished plaintiff with specific guidance as to what steps must be taken.
the letter and spirit of Rule 4(m),” as well as to Lee’s obligation as a federal plaintiff to proceed
“with reasonable diligence.” (Id.) These remarks were reduced to concrete, specific action items
and deadlines, to-wit:
“[T]he Court orders plaintiff to serve process on both defendants in strict
compliance with Rule 4(i), Fed.R.Civ.P., and to submit proofs of service
documenting same, on or before February 13, 2015. Absent full and timely
compliance with this directive, the undersigned may dismiss the Complaint
without prejudice for failure to perfect service of process in a timely manner,
failure to prosecute, and failure to comply with court orders.”
(Id.) Plaintiff was given a generous 32-day window to take the simple steps necessary to serve
process on defendants and get this case on track after nearly a year of plaintiff-imposed stalls and
In response to this gift-wrapped second (or, more accurately, third or even fourth) chance
at redemption, plaintiff appears to have done nothing. The court file is devoid of any
acknowledgment by plaintiff of these clear instructions, much less any indication that she has
undertaken to comply. She has not requested an extension, and her February 13 deadline for
compliance expired nearly a week ago. The resulting procedural posture of this action – 11.5
months into a federal civil lawsuit without proper service of process (which was readily
attainable) on governmental defendants or any plausible explanation for the delay – is
antithetical to the requirements of Rule 4(m), Fed.R.Civ.P. It also conflicts with Lee’s obligation
as a federal litigant to prosecute her lawsuit with reasonable diligence. Most importantly,
plaintiff’s latest omission contravenes the express directives of the January 12 Order, despite her
receiving actual notice of the adverse consequences (i.e., the sanction of dismissal) that might
It is well-settled that “[a] district court need not tolerate defiance of reasonable orders.”
Equity Lifestyle Properties, Inc. v. Florida Mowing and Landscape Service, Inc., 556 F.3d 1232,
1240 (11th Cir. 2009). The January 12 Order was both reasonable and well-grounded in law, yet
Lee did not comply with it, even after being warned of the dire consequences of inaction. Such
dilatory conduct warrants imposition of sanctions. District courts possess inherent power to
sanction errant litigants before them. See Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc.,
561 F.3d 1298, 1306 (11th Cir. 2009) (“A court may impose sanctions for litigation misconduct
under its inherent power.”); Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332,
1335 (11th Cir. 2002) (“Courts have the inherent authority to control the proceedings before
them, which includes the authority to impose ‘reasonable and appropriate’ sanctions.”). Such
power unquestionably includes the authority to dismiss a party’s claims “for failure to prosecute
with reasonable diligence or to comply with [the court’s] orders or rules of procedure.” Wahl v.
McIver, 773 F.2d 1169, 1174 (11th Cir. 1985); see also Equity Lifestyle, 556 F.3d at 1240 (“The
court may dismiss a claim if the plaintiff fails to prosecute it or comply with a court order.”);
Gratton v. Great American Communications, 178 F.3d 1373, 1374 (11th Cir. 1999) (observing
that Rule 41(b), Fed.R.Civ.P., expressly “authorizes a district court to dismiss a complaint for ...
failure to comply with a court order”).
Notwithstanding the availability of such a sanction in every district court’s arsenal, the
dismissal of an action for failure to prosecute should be undertaken “only in the face of a clear
record of delay or contumacious conduct by the plaintiff.” McKelvey v. AT & T Technologies,
Inc., 789 F.2d 1518, 1520 (11th Cir. 1986); see also Betty K Agencies, Ltd. v. M/V MONADA,
432 F.3d 1333, 1337-38 (11th Cir. 2005) (dismissal with prejudice “is an extreme sanction that
may be properly imposed only when (1) a party engages in a clear pattern of delay or willful
contempt (contumacious conduct); and (2) the district court specifically finds that lesser
sanctions would not suffice”) (citations and internal quotation marks omitted). Contumacious
conduct warranting dismissal for failure to prosecute includes such activities as “protracted footdragging,” “defiance of court orders,” “ignoring warnings,” and “wasteful expenditure of the
court’s time.” Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1, 4–5 (1st Cir. 2002). All of these
factors are present in this case.
Lee was ordered to complete service of process on defendants and to file proof of same
by no later than February 13, 2015. The Court likewise admonished Lee (who is represented by
counsel) in the plainest of terms that failure to comply in a full and timely manner may result in
dismissal of her claims. Yet Lee did not file a timely response. She did not file anything. She
did not request an additional extension of time, not did she seek relief from the strict terms of the
January 12 Order. The result is that this action has now been pending for nearly one year,
without plaintiff having taken the basic, routine steps prescribed by Rule 4(i) for service of
process on the United States and its agencies.
Under the circumstances, the Court finds that lesser sanctions will not suffice, and is left
with no reasonable alternative but to dismiss plaintiff’s claims for her failure to failure to comply
with the service requirements of Rule 4(m), her failure to prosecute this action, her clear record
of delay and contumacious conduct, and her failure to abide by the orders of this Court. This
action is dismissed without prejudice pursuant to Rules 4(m) and 41(b), Fed.R.Civ.P., and the
inherent powers of this Court. A separate judgment will enter.
DONE and ORDERED this 19th day of February, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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