Abrahams et al v. Phill-Con Services, LLC

Filing 39

ORDER entered granting defendants 36 Motion to Dismiss as further set out. The claims of the 41(b) plaintiffs are dismissed with prejudice. Signed by Chief Judge William H. Steele on 3/20/2013. (jlr)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION ETHEL L. ABRAHAMS, et al., ) ) ) ) ) ) ) ) ) Plaintiffs, v. PHIL-CON SERVICES, LLC, Defendant. ETHEL L. ABRAHAMS, et al., Plaintiffs, v. PHIL-CON SERVICES, LLC, and PHILLIPS & JORDAN, INC., Defendants. ) ) ) ) ) ) ) ) ) ) CIVIL ACTION 10-0326-WS-N Adv. Proc. No. 10-00075-MAM ORDER The defendants have filed a motion to dismiss the claims of several plaintiffs (“the 41(b) plaintiffs”) with prejudice under Rule 41(b). (Doc. 36).1 The 41(b) plaintiffs declined the opportunity to respond. (Doc. 38). Indeed, their attorney has represented that he is unable to oppose the motion. (Doc. 36 at 3). “The legal standard to be applied under Rule 41(b) is whether there is a clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.’” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985) (internal quotes omitted); accord Gratton v. Great American Communications, 178 F.3d 1373, 1374 (11th Cir. 1999). “The severe sanction of dismissal with prejudice ... 1 The plaintiffs as to whom dismissal is sought are: Ozell Benjamin; Maurice Johnson; Richard Johnson; Jerry Moore; Nehemiah Powell; Queen Robinson; Robert Shephard; Samuel Thomas; and Patrick Gary. can be imposed only in the face of a clear record of delay or contumacious conduct by the plaintiff.” Morewitz v. West of England Ship Owners Mutual Protection and Indemnity Association, 62 F.3d 1356, 1366 (11th Cir. 1995) (internal quotes omitted). The Court finds that this standard is met here. The 41(b) plaintiffs have repeatedly refused to respond to written discovery, have repeatedly refused to appear for deposition, and have disobeyed without excuse the Magistrate Judge’s order to appear in court for mediation. Whether or not they have lost interest in the litigation, the 41(b) plaintiffs’ longstanding pattern of conduct establishes a clear record of delay or willful contempt. The Court expressly finds that no sanction short of dismissal with prejudice will suffice. Accordingly, the plaintiffs’ motion to dismiss is granted. The claims of the 41(b) plaintiffs are dismissed with prejudice. DONE and ORDERED this 20th day of March, 2013. s/ WILLIAM H. STEELE CHIEF UNITED STATES DISTRICT JUDGE 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?