Clark v. The School Board Of Collier County, Florida et al
Filing
17
OPINION AND ORDER granting 11 motion to dismiss as to statute of limitations issue and otherwise denying as moot; granting 16 Motion to dismiss for lack of prosecution. The case is dismissed with prejudice for failure to prosecute and as ba rred by the statute of limitations. Costs of Clark I and Clark II will be imposed upon plaintiff pursuant to Fed. R. Civ. P. 41(d) if any action based on or including the same claim against the same defendants is brought by this plaintiff. The Clerk shall enter judgment accordingly, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 12/5/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CARLOS D. CLARK,
Plaintiff,
v.
Case No: 2:16-cv-727-FtM-29MRM
THE SCHOOL BOARD OF COLLIER
COUNTY, FLORIDA and MARK
ROSENBALM, in his individual
capacity,
Defendants.
ORDER OF DISMISSAL
This matter comes before the Court on defendants’ Motion to
Dismiss for Failure to Prosecute (Doc. #16) filed on November 15,
2016.
The time to respond has expired and plaintiff has failed to
respond.
Defendants’ previously filed a Motion to Dismiss (Doc.
#11) on October 13, 2016, however plaintiff failed to respond to
that motion 1 prompting this second motion.
1. Dismissal
Defendants seek dismissal of the case as barred by the statute
of limitations, or in the alternative, for failure to state a
claim.
1
(Doc. #11.)
Defendants also seek an involuntary dismissal
Plaintiff sought an extension of time to respond through
November 11, 2016, which was granted, but no response was filed.
(Docs. #12, #14.)
of this case with prejudice for failure to prosecute, and for the
costs associated with the previous action, Case No. 2:13-cv-820FTM-29DNF, based on its re-filing.
(Doc. #16.)
On November 22, 2013, plaintiff Carlos D. Clark initiated a
Complaint against Mark Rosenbalm and the School Board of Collier
County, Florida.
See Case No. 2:13-cv-820-FTM-29DNF (Clark I).
The Clark I Complaint was filed within 90 days of receipt by
plaintiff on August 26, 2013, of a Right to Sue letter.
Plaintiff
was permitted to file a Third Amended Complaint (Clark I, Doc.
#89), to which defendants filed an Answer and Affirmative Defenses
(Clark I, Doc. #90) and a Motion for Summary Judgment (Clark, I,
Doc. #91).
Plaintiff failed to respond, despite extensions of
time, an Order to Show Cause (Clark I, Doc. #98) for the failure
to respond, and a Report and Recommendation (Clark I, Doc. #99)
explaining
prosecute. 2
why
the
case
should
be
dismissed
for
failure
to
On August 25, 2016, the Court issued an Opinion and
Order adopting the Report and Recommendation of the Magistrate
Judge and dismissing the case without prejudice for failure to
prosecute, “except as to the applicable statute of limitations.”
(Clark I, Doc. #103.)
2
Plaintiff
filed
Objections
(Clark
I,
Doc.
#102)
acknowledging that a response to the Motion for Summary Judgment
was untimely, but failing to file an actual response.
2
The operative Third Amended Complaint (Clark I, Doc. #89) in
Clark I is virtually identical 3 to the Complaint filed in this case
(Clark II), except that plaintiff has added, under a heading of
“Statute of Limitations”, that the Third Amended Complaint was
dismissed without prejudice, and the complaint was being “refiled
pursuant to the Court’s order of dismissal within the 30-day period
following the dismissal.”
(Clark II, Doc. #1, p. 22.)
Plaintiff
seeks relief under Title VII of the Civil Rights Act of 1991 for
racial discrimination, under 42 U.S.C. § 1983 and the Fourteenth
Amendment on the basis of equal protection, and under a Florida
Statute for wrongful termination based on plaintiff’s race after
his wrongful termination on March 26, 2012.
It is unclear what authority allows plaintiff to re-initiate
the case without running afoul of the statute of limitations.
See
Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004)
(“Dismissal of a complaint, without prejudice, does not allow a
later complaint to be filed outside the statute of limitations.”).
Further, plaintiff never responded to the motions to dismiss in
this case to address the issue.
3
Only paragraphs 90 and 91 in the Clark II Complaint were
not in the Clark I Third Amended Complaint.
3
Clark II is based on the identical facts from Clark I,
including the termination from employment date of May 26, 2012 4,
and the same August 26, 2013, Right to Sue letter. 5
the claims are untimely on their face.
As a result,
The motions to dismiss
will be granted based on the applicable statute of limitations,
and based on the failure to respond to either motion.
2. Costs
Defendants seek their costs based on the filing of Clark II.
Rule 41(d) provides:
If a plaintiff who previously dismissed an
action in any court files an action based on
or including the same claim against the same
defendant, the court:
(1) may order the plaintiff to pay all or part
of the costs of that previous action; and
4
A Section 1983 claim is governed by the applicable personal
injury limitations period in the forum state. Miller v. Georgia,
223 F. App'x 842, 845 (11th Cir. 2007). In the State of Florida,
that period is 4 years from when the action accrues, that is, when
plaintiff knows or should know that they have suffered an injury.
Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003). In this
case, the relevant date would be the date of termination.
5
Under Title VII, a plaintiff must file a complaint within
90 days of receipt of the right to sue letter from the EEOC.
Miller v. Georgia, 223 F. App'x 842, 844 (11th Cir. 2007). Under
the Florida Civil Rights Act of 1992, Fla. Stat. § 760.01, et seq.,
the Florida Commission on Human Relations has 180 days from the
filing of a complaint with the EEOC or the commission to find
cause, or determine no cause. A plaintiff may bring a civil action
within 1 year of the determination. Fla. Stat. 760.11(5). This
suit was not filed within 1 year of the determination, the same
date that plaintiff received the right to sue letter.
4
(2) may stay the proceedings
plaintiff has complied.
Fed. R. Civ. P. 41(d).
until
the
This case involves identical claims and
parties as were in Clark I, however ordering plaintiff to pay all
or part of the costs is discretionary.
A defendant is not entitled
to reimbursement of costs that are deemed useful in continuing
litigation, i.e., the second case.
695, 700 (S.D. Ga. 2007).
Cadle Co. v. Beury, 242 F.R.D.
The purpose of Rule 41(d) is to deter
vexatious litigation and/or forum shopping by a plaintiff, and to
prevent unfairness to defendants.
Duffy v. Ford Motor Co., 218
F.3d 623, 633 (6th Cir. 2000); Esposito v. Piatrowski, 223 F.3d
497, 500 (7th Cir. 2000); Rogers v. Wal-Mart Stores, Inc., 230
F.3d 868, 874 (6th Cir. 2000); Simeone v. First Bank Nat’l Ass’n,
971 F.2d 103, 108 (8th Cir. 1992).
This case is being dismissed with prejudice, and defendants
will be the prevailing party in this litigation.
Costs in this
case are minimal as Clark II did not pass even the preliminary
stages of litigation before plaintiff failed to prosecute.
In the
exercise of its discretion, the Court will deny 41(d) costs of
Clark I, but will impose the condition upon the dismissal of this
case for any future re-filing.
Accordingly, it is now
ORDERED AND ADJUDGED:
5
1. Defendants’ Motion to Dismiss (Doc. #11) is GRANTED as to
the statute of limitations argument and otherwise DENIED
as moot, and the Motion to Dismiss for Failure to Prosecute
(Doc. #16) is GRANTED for failure to prosecute.
2. This action is DISMISSED with prejudice for failure to
prosecute and as barred by the statute of limitations.
Costs of Clark I and Clark II will be imposed upon plaintiff
pursuant to Fed. R. Civ. P. 41(d) if any action based on
or including the same claim against the same defendants is
brought by this plaintiff.
The Clerk shall enter judgment
accordingly, terminate all previously scheduled deadlines
and pending motions, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
December, 2016.
Copies:
Parties of record
6
5th
day of
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