North v. United States of America

Filing 38

ORDER adopting Background Facts set forth in 37 Report and Recommendation. This case is dismissed without prejudice. The Clerk of the Court is directed to close the file. Signed by Judge Marcia Morales Howard on 5/14/2012. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
NANCY LEE NORTH, individually and on
behalf of the Estate of William T. Hewitt,
deceased,
Plaintiff,
v.

Case No.: 3:10-cv-795-J-34TEM

UNITED STATES OF AMERICA,
Defendant.
_____________________________/

ORDER

THIS CAUSE is before the Court on the Report and Recommendation (Doc. No. 37;
Report), entered by the Honorable Thomas E. Morris, United States Magistrate Judge, on
April 5, 2012. In the Report, Magistrate Judge Morris recommends the dismissal of this
action pursuant to Rule 41(b), Federal Rules of Civil Procedure (“Rule(s)”), based upon
Plaintiff’s failure to appear at three consecutive status hearings, failure to comply with the
Court’s Order to Show Cause (Doc. No. 35), and failure to participate in discovery with
opposing counsel. See Report at 1-3. Plaintiff, who is proceeding pro se, has failed to file
objections to the Report, and the time for doing so has now passed.
The Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations by the magistrate judge.” 28 U.S.C. § 636(b). If no specific objections to
findings of facts are filed, the district court is not required to conduct a de novo review of

those findings. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see also 28
U.S.C. § 636(b)(1). However, the district court must review legal conclusions de novo. See
Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); United States v.
Rice, No. 2:07-mc-8-FtM-29SPC, 2007 WL 1428615, at * 1 (M.D. Fla. May 14, 2007).
Upon independent review of the file, the Court determines that while dismissal of this
action is appropriate, the Court will do so on a basis different than the one offered by the
Magistrate Judge. While the Court understands the Magistrate Judge’s frustration at
Plaintiff’s failure to appear for scheduled proceedings and to respond to court orders, the
Court is of the view that a dismissal under Rule 41(b), which would act as “an adjudication
on the merits,” is unnecessary. See Rule 41(b); see also Semtek Int’l Inc. v. Lockheed
Martin Corp., 531 U.S. 497, 505-06 (2001) (stating that under Rule 41 “an ‘adjudication upon
the merits’ is the opposite of a ‘dismissal without prejudice’”). Rather, the Court will dismiss
the action without prejudice for Plaintiff’s failure to prosecute, pursuant to Local Rule 3.10,
United States District Court, Middle District of Florida (“Local Rule(s)”). Dismissal is proper
under Local Rule 3.10 because Plaintiff has failed to comply with or respond to the Court’s
Order to Show Cause (Doc. No. 35). See Local Rule 3.10 (“[I]f no satisfactory cause is
shown, the case may be dismissed by the Court for want of prosecution.”). Moreover, the
Court notes that the Order to Show Cause (Doc. No. 35) gave Plaintiff a final opportunity to
show cause why the case should not be dismissed, and cautioned Plaintiff that if she failed
to respond, the Magistrate Judge would recommend dismissal of the action for failure to
prosecute and failure to follow court orders. Accordingly, it is hereby
ORDERED:

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1.

The Court adopts the Background Facts set forth in the Magistrate Judge’s

Report and Recommendation (Doc. No. 37) as the Court’s findings, but declines to adopt the
recommended resolution.
2.

This case is DISMISSED without prejudice.

3.

The Clerk of the Court is directed to terminate all pending motions and close

the file.

DONE AND ORDERED at Jacksonville, Florida, this 14th day of May, 2012.

lc17
Copies to:
The Honorable Thomas E. Morris,
United States Magistrate Judge
Counsel of Record
Pro Se Party

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