Kennedy v. Bonita Diner, LLC

Filing 19

ORDER re 17 Stipulation of Dismissal filed by Patricia Kennedy. Plaintiff's Stipulation for Dismissal of Case with Prejudice 17 is DENIED without prejudice. Plaintiff shall have up to and including April 24, 2017 to move for default judgment or voluntarily dismiss this case. Signed by Judge Sheri Polster Chappell on 4/10/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PATRICIA KENNEDY, individually
Plaintiff,
v.

Case No: 2:16-cv-742-FtM-38MRM

BONITA DINER, LLC,
Defendant.
/
ORDER1
This matter comes before the Court on Plaintiff’s Stipulation for Dismissal of Case
with Prejudice (Doc. 17) filed on March 31, 2017. Plaintiff requests that the Court dismiss
this action with prejudice but retain jurisdiction to enforce the terms of an undisclosed
Settlement Agreement and determine the amount of attorney’s fees, costs, expert fees,
and litigation expenses to which Plaintiff is entitled.

Plaintiff also states that the

effectiveness of their stipulated dismissal is contingent upon the Court retaining
jurisdiction as so requested.
A Clerk’s Entry of Default (Doc. 14) was issued against Bonita Diner, LLC on
January 30, 2017. Therefore, Defendant has not appeared in this case and thus is not

1

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yet a party.2 Plaintiff seeks the entry of a final judgment in its favor based on a stipulation
between Plaintiff and Bonita Diner, LLC.
The request will be denied at this time. Defendant remains in default and no formal
appearance has been entered subjecting it to the Court’s jurisdiction. If Plaintiff desires
the entry of a default judgment in its favor, including attorney’s fees and costs, a motion
seeking such relief pursuant to Fed. R. Civ. P. 55(b) should be filed. The Court is not
otherwise inclined to deem Plaintiff as prevailing, or entertain a motion for fees and costs,
without Defendant formally appearing in the case3 and agreeing to the “stipulation,” or
without the entry of a default judgment in Plaintiff’s favor.
As Defendant is in default, the only other option besides moving for the entry of
default judgment is a voluntarily dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). The
Court will allow Plaintiff a period of time to inform the Court how it wishes to proceed.
Failure to respond will result in this Court dismissing this case for failure to prosecute.
Accordingly, it is now
ORDERED:
(1) Plaintiff’s Stipulation for Dismissal of Case with Prejudice (Doc. 17) is DENIED
without prejudice.
(2) Plaintiff shall have up to and including April 24, 2017 to move for default
judgment or voluntarily dismiss this case.

Although Defendant filed a “response” to the request for clerk’s default (Doc. 13), it was stricken
by the Magistrate Judge as untimely and improper. (Doc. 15).
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The Eleventh Circuit has held that a corporation cannot proceed pro se and must be represented
by counsel. Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir. 1985). Additionally, Local
Rule 2.03(e) indicates that a corporation “may appear and be heard only through counsel admitted
to practice in the Court . . . .”

2

DONE and ORDERED in Fort Myers, Florida this 10th day of April, 2017.

Copies: All Parties of Record

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