Aaron v. Drury Hotels Company, LLC

Filing 19

ORDER denying 13 Defendant's Motion for Involuntary Dismissal. Signed by Judge Paul G. Byron on 8/1/2017. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CHARLENE AARON,
Plaintiff,
v.

Case No: 6:17-cv-533-Orl-40DCI

DRURY HOTELS COMPANY, LLC,
Defendant.
ORDER
This cause comes before the Court on Defendant’s Motion for Involuntary
Dismissal (Doc. 13), filed May 8, 2017. Plaintiff has not responded to Defendant’s motion
and the time for doing so has passed. This matter is therefore ripe for review.
I.

BACKGROUND
Plaintiff initiated this lawsuit in state court on January 1, 2017. After being served

with the Complaint, Defendant removed the action to this Court on March 27, 2017.
Following removal, the Court entered (1) a Related Case Order directing Plaintiff’s
counsel to inform the Court as to whether this litigation is related to any other litigation,
(2) an Interested Persons Order directing Plaintiff’s counsel to notify the Court of all
persons and entities having an interest in this litigation, and (3) an Order directing
Plaintiff’s counsel to comply with the administrative procedures regarding electronic filing
in this Court. Plaintiff’s counsel failed to respond to all three of the Court’s orders within
the time provided. 1 As a result, on April 21, 2017, the Court ordered Plaintiff to show

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The Court notes that Plaintiff’s counsel ultimately complied with the Interested
Persons Order on May 15, 2017, more than a month after the deadline to do so had
passed.

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cause why this case should not be dismissed without prejudice. After failing to respond
within the time provided, the Court dismissed this case without prejudice. Defendant now
moves to dismiss this case with prejudice pursuant to Federal Rule of Civil Procedure
41(b) as a sanction for counsel’s failings.
II.

DISCUSSION
Federal Rule of Civil Procedure 41(b) provides, in pertinent part, as follows:
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.

However, dismissal with prejudice under this rule is an “extreme sanction” which can only
be imposed when the Court finds that two circumstances are present: (1) the plaintiff
engaged in a clear pattern of delay or willful contempt; and (2) a lesser sanction would
not suffice. Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337–38 (11th Cir.
2005). Importantly, “the harsh sanction of dismissal with prejudice is thought to be more
appropriate in a case where a party, as distinct from counsel, is culpable.” Id. at 1338.
Here, the Court does not find that Plaintiff engaged in a clear pattern of delay or
willful contempt. The Related Case Order, Interested Persons Order, and Order requiring
compliance with the administrative procedures for electronic filing were directed to
Plaintiff’s counsel rather than Plaintiff, and it was Plaintiff’s counsel, not Plaintiff, who
failed to comply with these Orders. There is also no evidence in the record establishing
that Plaintiff instructed its counsel to disregard the Court’s orders. Accordingly, it would
be inappropriate to impose the extreme sanction of dismissal with prejudice where there
is no indication that Plaintiff is culpable for the misconduct at issue.

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III.

CONCLUSION
It is therefore ORDERED AND ADJUDGED that Defendant’s Motion for

Involuntary Dismissal (Doc. 13) is DENIED.
DONE AND ORDERED in Orlando, Florida on August 1, 2017.

Copies furnished to:
Counsel of Record

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