Employers Insurance Company of Wassau v. Redlands Christian Migrant Association, Inc.

Filing 55

ORDERED: Defendant Redlands Christian Migrant Association, Inc.'s Motion to Dismiss with Prejudice the Amended Complaint (Doc. 38) is DENIED. Signed by Judge Sheri Polster Chappell on 6/4/2021. (AEH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EMPLOYERS INSURANCE
COMPANY OF WAUSAU,
Plaintiff,
v.

Case No: 2:20-cv-108-SPC-NPM

REDLANDS CHRISTIAN
MIGRANT ASSOC., INC.,
Defendant.
/
OPINION AND ORDER1
Before the Court is Defendant Redlands Christian Migrant Association,
Inc.’s Motion to Dismiss with Prejudice the Amended Complaint (Doc. 38; Doc.
44), along with Plaintiff Employers Insurance Company of Wausau’s response
in opposition (Doc. 53). For the below reasons, the Court denies the motion.
Plaintiff sues Defendant for failing to pay it about half a million dollars
in insurance premiums. This case (and the others before it) has had a rocky
history.2 Litigation over the pleadings lasted three rounds and has continued

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Plaintiff first sued Defendant on the same complaint in 2018. But Senior United States
District Judge John E. Steele dismissed without prejudice the case for failure to prosecute.
See Employers Ins. Co. of Wausau v. Redlands Christian Migrant Ass’n, Inc., No. 18-cv-6012

into discovery.

Two months ago, Defendant moved to compel discovery

responses because Plaintiff neither responded nor objected to its requests. The
Court granted the motion, ordering Plaintiff to respond to Defendant’s
interrogatories and requests for production by April 9. (Doc. 35).
Because Plaintiff missed that deadline, Defendant now moves to dismiss
the Amended Complaint with prejudice and moves for a default judgment on
its counterclaim as a sanction. Defendant argues that Plaintiff’s failure is
another item on a long list of non-compliant conduct Plaintiff has shown in
prosecuting this case. And Defendant is correct that Plaintiff has not been a
model litigant. But Plaintiff’s conduct does not warrant a dismissal with
prejudice and default judgment. Here’s why.
Defendant moves under Federal Rules of Civil Procedure 37(b)(2) and
41(b). Both rules allow the court to dismiss an action for a party who ignores
court orders. Fed. R. Civ. P. 37(b)(2) (allowing a court to dismiss an action or
render a default judgment against a disobedient party for non-compliance with
discovery orders); Fed. R. Civ. P. 41(b) (letting a court dismiss an action if the
plaintiff fails to prosecute the case or comply with a court order). Although the
court has discretion to sanction a party, it is not without limits. A dismissal

JES-MRM (M.D. Fla. Apr. 25, 2019). Plaintiff tried the same suit again. But the undersigned
dismissed that case for failure to timely serve Defendant and failure to meet deadlines. See
Employers Ins. Co. of Wausau v. Redlands Christian Migrant Ass’n, Inc., No.19-cv-491-SPCNPM (M.D. Fla. Feb. 3, 2020). This identical case is Plaintiff’s third try.

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with prejudice—like Defendant requests—may be imposed only when “(1) a
party engages in a clear pattern of delay or willful contempt (contumacious
conduct); and (2) the district court specifically finds that lesser sanctions would
not suffice.” Betty K Agencies, Ltd., v. M/V MONADA, 432 F.3d 1333, 1337-38
(11th Cir. 2005) (citations omitted). This sanction is appropriate in cases
“where a party, as distinct from counsel, is culpable.” Id. at 1338 (citation
omitted). And most times a lesser sanction is enough. See Boazman v. Econ.
Lab’y, Inc., 537 F.2d 210, 212 (5th Cir. 1976);3 see also Malautea v. Suzuki
Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993) (stating violating a discovery
order “caused by simple negligence, misunderstanding, or inability to comply
will not justify a Rule 37 default judgment or dismissal”).
Dismissing the Amended Complaint with prejudice and entering a
default on Defendant’s counterclaim is too harsh a sanction under the facts of
this case. Although Plaintiff has not diligently prosecuted its claims, its efforts
have not crossed the line from simple negligence to delay or willful misconduct.
Plaintiff’s former attorney encountered professional and personal difficulties
litigating this case. And the Court recently learned why. Earlier this year,
Plaintiff reorganized its corporate structure that made document production a
challenge. Then the former attorney’s email system was hijacked, causing

Former Fifth Circuit opinions issued before October 1, 1981, are binding precedent in the
Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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notices and other emails from the Court and opposing counsel to be lost. (Doc.
45). The former attorney’s health complicated matters, as he was hospitalized
and underwent emergency surgery last month. (Doc. 39; Doc. 40). For these
reasons, the former attorney has withdrawn his representation and Plaintiff
has hired new counsel. Against this record, the Court does not find willful
misconduct to sanction Plaintiff.
Also, the cases Defendant relies on are nonstarters. Two cases involve
pro se litigants disobeying court orders. See Ferrier v. Q Link Wireless LLC,
No. 18-62851, 2019 WL 5260265, at *2 (S.D. Fla., Aug. 21, 2019) (granting a
motion to dismiss with prejudice because the pro se plaintiff “willfully failed to
comply with various orders and willfully failed to participate in discovery”);
Ran v. Cook, No. 1:07-cv-249, 2010 WL 3489923, at *2 (N.D. Fla., Aug. 30,
2010) (dismissing the case with prejudice as a sanction for the pro se plaintiff’s
failure to comply with multiple court orders).

This case differs because

Plaintiff’s former attorney, and not Plaintiff, is responsible for the
noncompliant conduct. In the last case Defendant cites, the court found the
plaintiff to have engaged in willful misconduct because it failed to timely
respond to discovery and a motion to compel, filed false and misleading
documents, and filed a sham lawsuit to extract an improper settlement. See
Turner v. Trans Union, LLC No. 18-cv-80938, 2019 WL 3926251, at *5 (S.D.
Fla., July 29, 2019), report and recommendation adopted 2019 WL 5102451.

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Unlike Turner, Plaintiff’s noncompliant conduct hasn’t risen to the level of
filing deceptive documents or trying to strongarm a settlement.
The Court understands Defendant’s frustration in trying to defend this
suit (and the others).

The Court too is discouraged because its orders,

deadlines, and procedural rules are not advisory. It is no party’s prerogative
to ignore deadlines and directives as it sees fit.

The Court is optimistic,

however, that Plaintiff’s new attorney will not repeat his predecessor’s errors.
Accordingly, it is now
ORDERED:
Defendant Redlands Christian Migrant Association, Inc.’s Motion to
Dismiss with Prejudice the Amended Complaint (Doc. 38) is DENIED.
DONE and ORDERED in Fort Myers, Florida this June 4, 2021.

Copies: All Parties of Record

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