Richardson v. T-Mobile USA, Inc.

Filing 40

ORDER adopting 38 Report and Recommendations.; terminating as moot 39 Motion to Suspend Discovery Deadline Pending Decision on Report and Recommendation to Dismiss this Action with Prejudice. Signed by Judge Roy B. Dalton, Jr. on 1/10/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
GEORGE RICHARDSON,
Plaintiff,
v.

Case No. 6:16-cv-599-Orl-37DCI

T-MOBILE USA, INC.,
Defendant.
ORDER
This cause is before the Court on the following:
1.

U.S. Magistrate Judge Daniel C. Irick’s Report and Recommendation
(Doc. 38), filed December 8, 2016; and

2.

Defendant’s Motion to Suspend Discovery Deadline Pending Decision on
Report and Recommendation to Dismiss this Action with Prejudice
(Doc. 39), filed December 30, 2016.

On November 28, 2015, Plaintiff initiated the instant action in state court, alleging
that Defendant violated the Americans with Disabilities Act. (Doc. 2.) Defendant later
removed the action to this Court. (Doc. 1.) Originally, Plaintiff was represented by
counsel, but he subsequently chose to proceed pro se. (See Docs. 23, 26, 29.) In the
interim, Plaintiff’s repeated failures to comply with Court Orders—without justification—
prompted U.S. Magistrate Judge Daniel C. Irick to issue a Report recommending that the
Undersigned dismiss this action with prejudice. (Doc. 38 (“R&R”).) Neither party objected
to the R&R, and the time for doing so has now elapsed. 1

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Defendant’s objections to the R&R were due on Thursday, December 22, 2016,

STANDARDS
When a party files written objections to the proposed findings and
recommendations in a magistrate’s report, the district court must make a de novo
determination of the portions of the report to which an objection is made.
28 U.S.C. § 636(b)(1). However, when a litigant fails to file specific objections to the
magistrate’s factual findings, the district court is not required to review such findings de
novo. Garvey v. Vaugh, 993 F.2d 776, 779 n.9 (11th Cir. 1993). Rather, in the absence
of objections, the district court reviews a magistrate’s report and recommendation for
clear

error.

Wiand

v.

Wells

Fargo

Bank,

N.A.,

No. 8:12-cv-557-T-27EAJ,

2016 WL 355490, at *1 (M.D. Fla. Jan. 28, 2016); see also Marcort v. Prem, Inc.,
208 F. App’x 781, 784 (11th Cir. 2006) (“Most circuits agree that in the absence of a
timely filed objection, a district court need not conduct a de novo review, but instead must
only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.”)
DISCUSSION
Federal Rule of Civil Procedure 41(b) “authorizes a district court to dismiss an
action for failure to obey a court order.” Moon v. Newsome, 863 F.3d 835, 838
(11th Cir. 1989); see also Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181
(5th Cir. 1989) (stating that “a court may sua sponte dismiss a case with prejudice under
Rule 41(b)”). “The court’s power to dismiss is an inherent aspect of its authority to enforce

and Plaintiff’s objections to the R&R were due on Tuesday, December 27, 2016. Local
Rule 6.02(a) (providing fourteen days to file objections to an R&R);
Fed. R. Civ. P. 6(a)(1), (d) (excluding due dates that fall on weekends and holidays and
providing three additional days to respond following service by mail).

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its orders and ensure prompt disposition of lawsuits.” Jones v. Graham, 709 F.2d 1457,
1458 (11th Cir. 1983). “The legal standard to be applied under Rule 41(b) is whether there
is a clear record of delay or willful contempt and a finding that lesser sanctions would not
suffice.” Id.
In his R&R, Magistrate Judge Irick found that, despite being “provided several
opportunities to cure his noncompliance,” “Plaintiff ha[d] engaged in a clear and
consistent pattern of willful disregard for the Court’s [O]rders.” (Id. at 6.) Specifically,
Magistrate Judge Irick found that Plaintiff willfully disregarded: (1) an Order dated
October 18, 2016, directing Plaintiff to appear at a hearing on a motion to compel (Doc. 22
(“October 18 Order”)); (2) an Order to Show Cause dated November 2, 2016, directing
Plaintiff to appear at a hearing regarding his failure to comply with the October 18 Order
(Doc. 30); (3) a discovery order dated November 2, 2016, compelling Plaintiff to provide
Defendant with certain discovery requests and proposed deposition dates (Doc. 31); and
(4) the Court’s Case Management and Scheduling Order mandating Plaintiff to attend
mediation (Doc. 17, pp. 10–12). (Id. at 4–6.) The R&R also found that Plaintiff: (1) failed
to heed the Court’s warnings that that failure to comply with its Orders could result in
dismissal of the case; and (2) “needlessly wasted the Court’s limited resources, impeded
the progress of [the] case, and frustrated Defendant’s ability to defend [the] case.” (Id.
at 6–7.) In view of the impending discovery deadline and Plaintiff’s continued
disobedience, Magistrate Judge Irick concluded that “no lesser sanctions—such as a fine,
striking pleadings, or prohibiting Plaintiff from opposing defenses—would prompt Plaintiff
to comply with the Court’s [O]rders.” (Id. at 7.)
In the absence of objections, the Court has reviewed the R&R for clear error. In

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doing so, the Court finds that the findings and recommendations set forth in the R&R are
supported and warranted by the record. Importantly, the R&R contains the requisite
findings for dismissal—that is: (1) that Plaintiff willfully disregarded numerous Court
orders; and (2) that no lesser sanctions would suffice.
Plaintiff’s pro se status does not excuse him from complying with the Court’s
Orders, particularly here, where the record demonstrates that he was given sufficient
opportunity to rectify his noncompliance. See, e.g., Moon, 863 F.2d at 839 (affirming the
district court’s dismissal of a pro se plaintiff’s case for failure to comply with a discovery
order where “[h]e was warned repeatedly of the consequences of misconduct”); see also
id. at 837 (“If a pro se litigant ignores a discovery order, he is and should be subject to
sanctions like any other litigant.”) As such, the R&R is due to be adopted in its entirety.
Further, Defendant’s request that the Court suspend the discovery deadline (Doc. 39) is
due to be denied as moot. 2
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

U.S. Magistrate Judge Daniel C. Irick’s Report and Recommendation
(Doc. 38) is ADOPTED, CONFIRMED, and made part of this Order.

2.

This action is DISMISSED WITH PREJUDICE.

3.

Defendant’s Motion to Suspend Discovery Deadline Pending Decision on

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Such motion also fails to comply with Local Rule 3.01(g). Indeed, Defendant’s
argument that such motion is akin to a motion for involuntary dismissal—and thus,
excluded from compliance with Local Rule 3.01(g)—is unavailing. Rather, Defendant’s
motion requests suspension of the discovery deadline until the Court rules on the R&R.
(Doc. 39.) This in no way “falls under the auspices” of Local Rule 3.01(g)’s exemptions.
Defendant is forewarned that future attempts to skirt the conferral requirement may result
in the imposition of sanctions without warning.

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Report and Recommendation to Dismiss this Action with Prejudice
(Doc. 39) is DENIED AS MOOT.
4.

The Clerk is DIRECTED to close the file.

DONE AND ORDERED in Chambers in Orlando, Florida, on January 10, 2017.

Copies:
Counsel of Record
Pro Se Party

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