McCants v. Enhanced Recovery Company, LLC

Filing 32

ORDER granting 28 Defendant's Motion to Dismiss Complaint, or Alternatively for Order to Show Cause. This case is dismissed with prejudice. The Clerk of the Court is directed to close the file. Signed by Judge Marcia Morales Howard on 10/19/2017. (JW)

Case 3:16-cv-00435-MMH-PDB Document 32 Filed 10/19/17 Page 1 of 6 PageID 783

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
SHERMANITA MCCANTS,
Plaintiff,
-vs-

Case No. 3:16-cv-435-J-34PDB

ENHANCED RECOVERY
COMPANY, LLC,
Defendant.
______________________________________
ORDER
THIS CAUSE is before the Court on Defendant’s Motion to Dismiss Complaint, or
Alternatively for Order to Show Cause and Supporting Memorandum of Law (Dkt. No. 28;
Motion) filed on August 25, 2017. In the Motion, Defendant Enhanced Recovery Company,
LLC (“ERC”), pursuant to Rule 41(b) of the Federal Rules of Civil Procedure (Rule(s)), seeks
dismissal of Plaintiff’s Complaint, or alternatively an order to show cause why the case
should not be dismissed. See Motion at 1. When Plaintiff Shermanita McCants (“McCants”)
failed to file a response to the Motion, the Court entered an Order (Dkt. No. 29; Order to
Respond) on September 19, 2017, advising McCants that if she did not file a response to
the Motion by October 4, 2017, the Court would treat the Motion as being unopposed. As
of this date, McCants has failed to file a response or a request for an extension of time in
which to do so. Accordingly, the Motion is due to be resolved.

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I.

BACKGROUND
McCants initiated this action on April 13, 2016, by filing her Complaint and Demand

for Jury Trial (Dkt. No. 1; Complaint) alleging that ERC failed to pay overtime compensation
in violation of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”). On May 4,
2016, ERC filed an Answer (Dkt. No. 7) denying that it violated the FLSA. The parties then
proceeded in accordance with the FLSA Scheduling Order (Dkt. No. 4) entered on April 15,
2016. After the parties exhausted all settlement efforts, they filed their Case Management
Report (Dkt. No. 20), and on September 9, 2016, the Court entered a Case Management
and Scheduling Order and Referral to Mediation (Dkt. No. 21; CMSO).
On June 13, 2017, counsel for McCants filed a Motion to Withdraw (Dkt. No. 25;
Motion to Withdraw) advising the Court that irreconcilable differences had arisen between
counsel and McCants that would make it impossible to continue representing her in this
matter. The Honorable Patricia D. Barksdale, United States Magistrate Judge, entered an
Order granting the Motion to Withdraw on June 30, 2017. See Order (Dkt. No. 27; Order on
Motion to Withdraw). In that same Order, the Court directed new counsel to file a notice of
appearance or McCants to file a notice advising the Court that she intended to represent
herself by July 31, 2017, and also extended the deadlines set forth in the CMSO to allow
McCants the opportunity to find new counsel. See id. When McCants failed to file any such
notice, and no appearance had been made by new counsel on her behalf, ERC filed the
instant Motion.

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II.

STANDARD OF REVIEW
Rule 41(b) of the Federal Rules of Civil Procedure “authorize[s] a district court, on

defendant’s motion, to dismiss an action for failure to prosecute or to obey a court order or
federal rule.” Manning v. Ga. Med. Billing Specialists, Inc., No. CV 204-186, 2005 WL
1638369, at *1 (S.D. Ga. July 12, 2005) (citing Goforth v. Owens, 766 F.2d 1533, 1535 (11th
Cir. 1985)). A pro se litigant who fails to follow an order of the court or exhibits a lack of
respect for the court and its authority may be subject to Rule 41(b) dismissal. Gaines v.
Bryant, No. 2:05-CV-1124-MEF, 2008 WL 696828, at *2 (M.D. Ala. March 13, 2008); see
also Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Indeed, a pro se plaintiff is
“subject to the relevant law and rules of the court, including the Federal Rules of Civil
Procedure.” Moon, 863 F.2d at 837.
Pursuant to Rule 41(b), dismissal of an action is appropriate when there is a “clear
record of delay or willful contempt and a finding that lesser sanctions would not suffice.”
Goforth, 766 F.2d at 1535; see also Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th
Cir. 1980).1 Rule 41(b) makes clear that a trial court has discretion to impose sanctions on
a party who fails to adhere to court rules. See Fed. R. Civ. P. 41(b); see Goforth, 766 F.2d
at 1535). However, that discretion is not unlimited, and the Court is mindful that dismissal
with prejudice “is a sanction of last resort, applicable only in extreme circumstances, and
generally proper only where less drastic sanctions are unavailable.” McKelvey v. AT & T
Technologies, Inc., 789 F.2d 1518, 1520 (11th Cir. 1986).

1

“A finding of such extreme

This case and all Fifth Circuit cases decided prior to September 30, 1981, are binding
precedent pursuant to Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981).
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circumstances necessary to support a sanction of dismissal must, at a minimum, be based
on evidence of willful delay.” Id. at 1520. “A party’s simple negligence or other action
grounded in a misunderstanding of a court order does not warrant dismissal.” EEOC v. Troy
State University, 693 F.2d 1353, 1357 (11th Cir. 1982).
III.

DISCUSSION
McCants has been provided with more than enough time and ample opportunity to

comply with this Court’s Orders and to prosecute this action. In the Order on Motion to
Withdraw, McCants was given thirty-one (31) days to retain new counsel or to file a notice
advising the Court that she intended to represent herself. See Order on Motion to Withdraw
at 1. She filed nothing at all in response to that Order. After ERC filed the instant Motion,
McCants again failed to respond prompting the Court to enter an order giving her an
additional opportunity to oppose dismissal. See Order to Respond. Yet, McCants has failed
to file any opposition, any response or any motion for an extension of time.
In addition, ERC sets forth in detail in the Motion its efforts to attempt to reach
McCants with regard to this matter. ERC attempted to contact McCants by telephone on
August 7, 2017, and through letters on August 18, 2017 and August 21, 2017. See Motion
at 2. ERC also attempted to confer with McCants prior to filing the Motion as required by
Local Rule 3.01(g), United States District Court, Middle District of Florida (Local Rule(s)),
but all such attempts were futile. See id.
Most recently, on October 3, 2017, ERC filed a motion for summary judgment seeking
entry of summary judgment as to the entirety of this action. See Defendant’s Dispositive
Motion for Summary Judgment (Dkt. No. 30; Motion for Summary Judgment). That same
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day, the Court entered a Summary Judgment Notice (Dkt. No. 31) advising McCants of her
need to respond to the Motion for Summary Judgment. McCants’ response to this motion
was due to be served by October 17, 2017. As of the date of this Order, McCants has not
responded to the Motion for Summary Judgment.
The record in this case is one of willful delay and reflects that McCants has altogether
abandoned this action. She is no longer responding to opposing counsel as required by the
Rules and Local Rules, and she is not responding to Court Orders. Notably, the delay and
recalcitrance is directly attributable to McCants herself and not to counsel. “Dismissal under
Rule 41(b) is appropriate where there is . . . an implicit or explicit finding that lesser
sanctions would not suffice.” Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374 (11th
Cir. 1999). The Court finds based upon the record in this action, and in particular McCants’
failure to respond to any communication from counsel or the Court or meet any deadline,
that imposing an alternative or lesser sanction on McCants will not curtail or deter her
disregard of Court Orders or her litigation obligations. The Court has given her ample
opportunity to properly prosecute this action, and she has simply refused.
IV.

CONCLUSION
Having considered the arguments set forth in the Motion, and the entire record of this

case, the Court is convinced that it is appropriate to grant the Motion and dismiss this case
with prejudice.
Accordingly, it is hereby ORDERED:
1.

Defendant’s Motion to Dismiss Complaint, or Alternatively for Order to Show

Cause and Supporting Memorandum of Law (Dkt. No. 28) is GRANTED.
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2.

This case is DISMISSED with prejudice.

3.

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

file.
DONE AND ORDERED in Jacksonville, Florida, this 19th day of October, 2017.

ja
Copies to:
Counsel of Record
Pro Se Parties

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