Tannehill et al v. Wilkie et al

Filing 119

MEMORANDUM OPINION AND ORDER, ADOPTING 111 Report and Recommendation; GRANTING Plaintiff's 115 motion to extent Mr. Tannehill seeks to correct his objections; DENYING as moot Plaintiff's 114 motion since the Court is considering hi s objections to be timely; GRANTING the 87 United States' Second Motion to Dismiss; and DISMISSING without prejudice claims filed against the United States as set out. Signed by District Judge Terry F. Moorer on 11/17/2021. (copies to Pltfs) (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES W. TANNEHILL and ROBYN
L. TANNEHILL,
Plaintiffs,
vs.
DENIS S. McDONOUGH,
SECRETARY, U.S. DEPARTMENT of
VETERANS AFFAIRS, et al.,
Defendants.

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CIV. ACT. NO. 1:20-cv-105-TFM-C

MEMORANDUM OPINION AND ORDER
On September 13, 2021, the Magistrate Judge entered a Report and Recommendation
which recommends Defendant United States’ Second Motion to Dismiss (Doc. 87) be granted and
the United States be dismissed without prejudice due to insufficiency in the service of process.
See Doc. 111. Plaintiff James W. Tannehill timely filed objections. See Doc. 113. No objections
were filed by Robyn L. Tannehill and Mr. Tannehill cannot represent his wife as he is not an
attorney. Therefore, the objections will only be considered as to Mr. Tannehill. Additionally,
Plaintiff also filed several subsequent pleadings which the Court will consider along with his
objections. See Docs. 114, 115. To the extent Mr. Tannehill seeks to correct his objections, the
Court will permit him to do so and the Motion (Doc. 115) is GRANTED. The errata sheet will be
considered timely alongside his objections. To the extent Mr. Tannehill is objecting to the
timeliness of the docketing, such objection is rendered moot because the Court is considering the
objections timely filed. It is not uncommon for mailed documents to be docketed within a few
days of mail receipt. Mr. Tannehill is advised that the Southern District of Alabama receives a
large quantity of mail daily and especially when received in an afternoon may take a day or two to
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docket. As such, the motion (Doc. 114) is DENIED as moot since the Court is considering his
objections to be timely. Finally, the Court will also address the earlier filed “Objection” wherein
he indicated his perception that the Court was “coaching” the Defendants. See Doc. 81. He noted
several docket entries from March 2, 2021 and March 3, 2021. Mr. Tannehill is advised that these
are standard entries done in this district when such deadline become applicable after a motion to
dismiss is denied (in whole or in part). As the docket sheet clearly reveals, the Memorandum
Opinion and Order was issued on March 2, 2021 which adopted the previous R&R and granted in
part and denied in part several motions to dismiss. See Doc. 75. Consequently, upon the denial
of the motions, answers became due pursuant to Fed. R. Civ. P. 12(a)(4)(A) which states “if the
court denies the motion or postpones its disposition until trial, the responsive pleading must be
served within 14 days after notice of the court's action.” These docket entries serve as a reminder
to ALL parties - including the Court - of the upcoming deadlines based upon the denial of the
motions. Therefore, this “objection” (Doc. 81) is overruled. The Court has no intention of
changing its standard procedures.
Turning now to the substance of the currently pending Report and Recommendation
(“R&R”) and Mr. Tannehill’s objections. On March 2, 2021, the Court denied without prejudice
the United States’ Motion to Dismiss Plaintiffs’ Complaint as to the United States [Fed. R. Civ. P.
12(b)(1), (5), and (6) (Doc. 41). See Doc. 75 (adopting R&R); see also Doc. 69 (underlying
analysis). As part of that same Memorandum Opinion and Order, the Court directed Plaintiffs to
perfect service on Defendant Robert L. Wilkie, Secretary of the United States Department of
Veterans Affairs within twenty calendar days of receipt of this order (which was presumed to be
five days after the date of the order). The Court cautioned Plaintiffs that failure to do so may result
in the dismissal of Defendant Wilkie from the lawsuit which may have implications on the subject-

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matter jurisdiction of this lawsuit. Id. at 4. Plaintiff then re-objected to that order which the Court
overruled on March 31, 2021. See Docs. 75, 79. The Court also noted the automatic substitution
of Denis R. McDonough as the Secretary of the U.S. Department of Veterans Affairs in place of
Robert L. Wilkie. See Doc. 79. The Court further warned Plaintiff that Court orders are not options
and the warning was intended to put them on notice that failure to comply may have the
consequence of dismissal of that defendant. Id. at 2. The Court then provided Plaintiffs with an
additional fifteen calendar days to perfect service on Defendant McDonough. Id. at 3. As noted
by the Magistrate Judge in the current R&R, that deadline would then be no later than April 20,
2021.
The Court has reviewed Mr. Tannehill’s objections and the errata sheet. Mr. Tannehill
seemingly ignores the requirements of the Federal Rules of Civil Procedure on service and
indicates the fact Defendant McDonough is represented by the U.S. Attorney’s office shows a
waiver of service. Such is not the case under the law. Moreover, his complaints that the Court
does not “guide” the pro se plaintiffs also has no bearing on the status of service. Nothing in Mr.
Tannehill’s objections address the well-reasoned analysis of the Magistrate Judge nor the issues
raised in the United States’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5).
The Complaint in this case was filed on February 21, 2020. Fed. R. Civ P. 4(m) states “[i]f
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. But, if the plaintiff shows good
cause for the failure, the court must extend the time for service for an appropriate period.” In this
case, the Court extended that deadline on several occasions and Plaintiffs still failed to comply
with the rules on service. Therefore, dismissal is mandated by the federal rules.

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In addition, though raised by the motion to dismiss and alluded to by the Magistrate Judge,
the Court also notes that a secondary basis for dismissal is failure to obey court orders. Though
neither the R&R nor the motion to dismiss raise Fed. R. Civ. P. 41(b) explicitly, the Court also
finds it an appropriate application.

Fed. R. Civ. P. 41(b) authorizes dismissal of a complaint for

failure to prosecute or failure to comply with a court order or the federal rules. Gratton v. Great
Am. Commc’ns, 178 F.3d 1373, 1374 (11th Cir. 1999). Further, such a dismissal may be done on
motion of the defendant or sua sponte as an inherent power of the court. Betty K Agencies, Ltd. v.
M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005). “[D]ismissal upon disregard of an order,
especially where the litigant has been forewarned, generally is not an abuse of discretion.” Vil v.
Perimeter Mortg. Funding Corp., 715 F. App’x 912, 915 (quoting Moon v. Newsome, 863 F.2d
835, 837 (11th Cir. 1989)). “[E]ven a non-lawyer should realize the peril to [his] case, when [he]
. . . ignores numerous notices” and fails to comply with court orders. Anthony v. Marion Cty. Gen.
Hosp., 617 F.2d 1164, 1169 (5th Cir. 1980); see also Moon, 863 F.2d at 837 (As a general rule,
where a litigant has been forewarned, dismissal for failure to obey a court order is not an abuse of
discretion.). Therefore, the Court finds it appropriate to exercise its “inherent power” to “dismiss
[Plaintiff’s claims] sua sponte for lack of prosecution.” Link v. Wabash R.R. Co., 370 U.S. 626,
630, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962); see also Betty K Agencies, Ltd., 432 F.3d at 1337
(describing the judicial power to dismiss sua sponte for failure to comply with court orders).
In the case at hand, despite numerous orders to do so and being informed of the
consequences for failure to comply, Plaintiffs have stubbornly refused to address the sufficiency
of process and instead seem to view the Court’s admonitions as some kind of favoritism instead
of what they are – “Orders of the Court.” The Court has provided ample guidance to the pro se
plaintiffs on what needed to occur in order to perfect service. Instead of heeding that guidance

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and warnings, Plaintiffs simply refused to comply with the Federal Rules of Civil Procedure and
the Orders of this Court. As such, in addition to Fed. R. Civ. P. 12(b)(5), the Court also finds that
dismissal for failure to comply with court orders under Fed. R. Civ. P. 41(b) is also appropriate.
After due and proper consideration of all portions of this file deemed relevant to the issues
raised, and a de novo determination of those portions of the recommendation to which objection
is made, the report and recommendation of the Magistrate Judge (Doc. 111) is ADOPTED as the
opinion of this Court. Accordingly, it is ORDERED that the United States’ Second Motion to
Dismiss [Fed. R. Civ. P. 12(b)(5)] (Doc. 87) is GRANTED and the claims filed against the United
States, which are brought against Denis S. McDonough, Secretary, U.S. Department of Veterans
Affairs, are DISMISSED without prejudice.
DONE and ORDERED this 17th day of November, 2021.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES DISTRICT JUDGE

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