Abrahams et al v. Phill-Con Services, LLC
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ETHEL L. ABRAHAMS, et al.,
PHIL-CON SERVICES, LLC,
ETHEL L. ABRAHAMS, et al.,
PHIL-CON SERVICES, LLC, and
PHILLIPS & JORDAN, INC.,
CIVIL ACTION 10-0326-WS-N
Adv. Proc. No. 10-00075-MAM
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 ...
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
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