Roderick et al v. Hartford Insurance Company of the Midwest

Filing 58

ORDERED: This case is DISMISSED without prejudice. The Clerk is DIRECTED to enter judgment, terminate all pending motions or deadlines, and close the file. Signed by Judge Sheri Polster Chappell on 1/7/2025. (AEH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ALLISON M. RODERICK,
Plaintiff,
v.

Case No.: 2:23-cv-1169-SPC-NPM

HARTFORD INSURANCE
COMPANY OF THE MIDWEST,
Defendant.
OPINION AND ORDER
This Hurricane Ian-related insurance dispute is before the Court sua
sponte. On November 27, 2024, Defendant Hartford Insurance Company of the
Midwest filed its Motion for Summary Judgment. (Doc. 56). Plaintiff Allison
M. Roderick did not file a response in opposition to the motion or request an
extension of time to do so. So on December 23, 2024, the Court issued an Order
to Show Cause by December 30, 2024, warning her that under Local Rule
3.01(c), “[i]f a party fails to timely respond, the motion is subject to treatment
as unopposed.” (Doc. 57). The Court observed that “it does not appear Plaintiff
is diligently prosecuting this action or opposing adverse judgment” and
cautioned Plaintiff that “[f]ailure to comply with this Order may result in the
dismissal of this action without further notice.” (Id. (citing M.D. Fla. L.R.

3.10). Nonetheless, Plaintiff failed to respond to the Order to Show Cause or
request an extension of time to do so.
Under these circumstances, the Court considers whether dismissal of
this case is appropriate. It is. First, Local Rule 3.10 of the United States
District Court for the Middle District of Florida provides that “[a] plaintiff’s
failure to prosecute diligently can result in dismissal if the plaintiff in response
to an order to show cause fails to demonstrate due diligence and just cause for
delay.” Further, Federal Rule of Civil Procedure 41(b) provides:
If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the
action or any claim against it. Unless the dismissal order
states otherwise, a dismissal under this subdivision (b) and
any dismissal not under this rule—except one for lack of
jurisdiction, improper venue, or failure to join a party
under Rule 19—operates as an adjudication on the merits.

Fed. R. Civ. P. 41(b). The Supreme Court has explained that dismissal under
Rule 41(b) does not require a motion from a defendant. See Link v. Wabash R.
Co., 370 U.S. 626, 630 (1962) (rejecting argument that Rule 41(b) prohibits
involuntary dismissals for failure of plaintiff to prosecute except on motion by
defendant). Rather, “[t]he authority of a court to dismiss sua sponte for lack
of prosecution has generally been considered an inherent power, governed not
by rule or statute but by the control necessarily vested in courts to manage
their own affairs so as to achieve the orderly and expeditious disposition of
cases.” Id. (cleaned up).

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Here, Plaintiff is represented by counsel, who is still active on the docket
and thus received electronic notice of both the motion for summary judgment
and the Order to Show Cause. (Docs. 56, 57). But Plaintiff’s counsel did not
respond to either filing, much less show “due diligence and just cause for
delay.”

In the Eleventh Circuit, a district court “may dismiss a claim if the

plaintiff fails to prosecute it or comply with a court order.” Equity Lifestyle
Props., Inc. v. Fla. Mowing And Landscape Serv., Inc., 556 F.3d 1232, 1240
(11th Cir. 2009) (citing Fed. R. Civ. P. 41(b)). Given Plaintiff’s failure to
respond to the Order to Show Cause, dismissal is appropriate.

The only

question is whether dismissal should be with or without prejudice.
Dismissal with prejudice for failure to prosecute is a “sanction . . . to be
utilized only in extreme situations” and requires that a court “(1) conclude a
clear record of delay or willful contempt exists; and (2) make an implicit or
explicit finding that lesser sanctions would not suffice.”

Thomas v.

Montgomery Cnty. Bd. of Educ., 170 F. App’x 623, 625–26 (11th Cir. 2006)
(cleaned up) (quoting Morewitz v. West of Eng. Ship Owners Mut. Prot. &
Indem. Ass’n (Lux.), 62 F.3d 1356, 1366 (11th Cir. 1995)); see also Taylor v.
Spaziano, 251 F. App’x 616, 619 (11th Cir. 2007) (citation omitted).

By

contrast, dismissal without prejudice for failure to prosecute is not an
adjudication on the merits; and, therefore, courts are afforded greater

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discretion in dismissing claims in this manner. See Taylor, 251 F. App’x at
619.
This Court carefully exercises its discretion to dismiss cases and—while
this case is a close call as to dismiss this case with prejudice because Plaintiff
has failed to respond whatsoever to two filings—concludes that dismissal of
this action without prejudice is warranted.

See Coleman v. St. Lucie Cnty.

Jail, 433 F. App’x 716, 719 (11th Cir. 2011) (upholding dismissal without
prejudice for failure to prosecute Section 1983 complaint, where plaintiff did
not respond to court order to supply defendant’s current address for purpose of
service); Taylor, 251 F. App’x at 620–21 (upholding dismissal without prejudice
for failure to prosecute, because plaintiffs insisted on going forward with
deficient amended complaint rather than complying, or seeking an extension
of time to comply, with court’s order to file second amended complaint); Brown
v. Tallahassee Police Dep’t, 205 F. App’x 802, 802–03 (11th Cir. 2006)
(upholding dismissal without prejudice for failure to prosecute Section 1983
claims, where plaintiff failed to follow court order to file amended complaint
and court had informed plaintiff that noncompliance could lead to dismissal).
While Plaintiff’s lack of diligence is disturbing, on balance, this is not the type
of “extreme situation” warranting dismissal with prejudice.

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Thus, this case is dismissed under the Court’s inherent authority and
Rule 41(b) for Plaintiff’s failure to comply with the Court’s Order to Show
Cause and for want of prosecution.
Accordingly, it is now
ORDERED:
This case is DISMISSED without prejudice.

The Clerk is

DIRECTED to enter judgment, terminate all pending motions or deadlines,
and close the file.
DONE and ORDERED in Fort Myers, Florida on January 7, 2025.

Copies: All Parties of Record

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