Barr v. One Touch Direct, LLC et al

Filing 191

ORDER: Defendants One Touch Direct, LLC, AT&T Services, Inc., and DPG Employee Leasing LLC's Motion to Dismiss Plaintiff's Claims against Defendants with Prejudice (Doc. # 172 ) is GRANTED. This action is DISMISSED WITH PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b). All other motions that are currently pending are DENIED AS MOOT. The Clerk shall CLOSE this case. Signed by Judge Virginia M. Hernandez Covington on 3/28/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ALFRED BARR,
Plaintiff,
v.

Case No. 8:15-cv-2391-T-33MAP

ONE TOUCH DIRECT, LLC, et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
Defendants One Touch Direct, LLC, AT&T Services, Inc., and
DPG Employee Leasing LLC’s Motion to Dismiss Plaintiff’s
Claims against Defendants with Prejudice (Doc. # 172), filed
on March 9, 2017. Pro se Plaintiff Alfred Barr’s response was
due on March 23, 2017. However, as of this Order, Barr failed
to respond.
In addition, the Court previously ordered Barr to file
a

supplement

explaining

an

apparent

discrepancy

in

the

record. (Doc. # 181). That supplement was due on March 27,
2017. (Id. at 6). As of this Order, Barr failed to file the
supplement. For the reasons below, this action is dismissed.

I.

Protraction: A Background to this Case
Barr instituted this action on October 9, 2015. (Doc. #

1). The original complaint named five defendants: “One Touch
Direct, LLC, et al., Joseph Mole, and Christopher Reed, AT&T,
and DPG Leasing.” (Id. at 1). After the Court held its case
management hearing, during which Barr was granted leave to
amend, Barr filed his first amended complaint on January 19,
2016. (Doc. # 38). The first amended complaint named “One
Touch Direct, LLC, Joseph Mole, and Christopher Reed, AT&T
Services Inc., and DPG Employee Leasing LLC” as defendants.
(Id. at 1).
The

Defendants

moved

to

dismiss

the

first

amended

complaint and Barr failed to timely respond. (Doc. ## 43,
50). As such, the Court granted the motion to dismiss as
unopposed and closed the case. (Doc. # 50). However, Barr
moved to reopen the action (Doc. # 53) and, in the interests
of fairness and recognizing that cases are preferably tried
upon the merits, the Court reopened the action. (Doc. # 56).
The Court specifically stated in that Order:
the Court reminds Barr yet again that he must comply
with all Local Rules and the Federal Rules of Civil
Procedure. Johnson v. Rosier, 578 Fed. Appx. 928,
930 (11th Cir. 2014) (stating, “[a] pro se litigant
‘is subject to the relevant law and rules of court,
including the Federal Rules of Civil Procedure’”
(quoting Moon v. Newsome, 863 F.2d 835, 837 (11th

2 

Cir. 1989))). The Court takes deadlines seriously
and it is Barr’s responsibility to ensure that he
complies with such deadlines or seeks relief by
filing an appropriate motion.
(Id. at 2-3). In addition, the Court granted Barr leave to
file a second amended complaint (Id. at 3).
Barr filed his second amended complaint on March 18,
2016. (Doc. # 64). The second amended complaint named “One
Touch

Direct,

LLC,

Joseph

Mole,

Christopher

Reed,

AT&T

Services Inc., and DPG Employee Leasing LLC” as defendants.
(Id. at 1).
Another

round

of

briefing

ensued

during

which

the

Defendants sought dismissal of the second amended complaint,
or particular counts thereof, on various grounds. (Doc. ##
69, 70, 74, 76). One of the arguments asserted by Mole and
Reed was that the second amended complaint should be dismissed
as against them under Rule 12(b)(5) for insufficient service
of process. (Doc. # 70 at 2-4). The Court provided an indepth discussion regarding service in its Order dismissing
the second amended complaint. (Doc. # 78 at 7-12). Moreover,
Barr’s suit against Mole and Reed was not dismissed with
prejudice at that stage due to failure to comply with Rule 4;
rather, Barr was granted an extension of time to effect
service upon Mole and Reed. (Id. at 12; Doc. # 82).

3 

On May 31, 2016, Barr filed his third amended complaint.
(Doc. # 93). The third amended complaint named only four
defendants:

“One

Touch

Direct,

LLC,

Joseph

Mole,

AT&T

Services Inc., and DPG Employee Leasing LLC.” (Id. at 1).
When Barr failed to comply with the Court’s deadline for
effecting service and filing proof of service, the Court—
instead of summarily dismissing Barr’s action for failure to
comply with Rule 4 and the Court’s deadline—granted Barr a
second

extension

of

time

to

serve

the

sole

remaining

individual Defendant, Mole. (Doc. # 100). The Court also
provided another in-depth discussion on the requirements of
Rule 4 in an effort to explicate what was required of Barr.
(Id.).
Two interlocutory appeals were then taken by Barr from
a litany of Court Orders. (Doc. ## 111, 132). Both appeals
were dismissed sua sponte by the Eleventh Circuit for lack of
jurisdiction. (Doc. ## 136, 140). Before Barr filed those
interlocutory appeals, the Defendants had moved to dismiss
the third amended complaint. (Doc. ## 106, 107). Because the
filing of a notice of appeal is an event of jurisdictional
significance, Green Leaf Nursery v. E.I. DuPont de Nemours &
Co., 341 F.3d 1292, 1309 (11th Cir. 2003) (internal citations
omitted), the Court deferred ruling on the motions to dismiss.

4 

(Doc. # 117). Once jurisdiction reinvested with this Court,
Barr was instructed to respond to the pending motions to
dismiss by February 20, 2017, which was extended to March 2,
2017. (Doc. ## 142, 156).
Rather

than

actually

responding

to

the

motions

to

dismiss, Barr filed what was in effect a motion for leave to
file a fourth amended complaint. (Doc. # 165). Attached to
the construed motion for leave to file a fourth amended
complaint was Barr’s proposed fourth amended complaint. (Doc.
# 165-1). The proposed fourth amended complaint named only
“One Touch Direct, LLC, a Florida Limited Liability Company
(‘OTD’),

DPG

Employee

Leasing,

LLC,

a

foreign

limited

liability company (‘DPG’), and AT&T Services, Inc., a foreign
corporation (‘AT&T’)” as defendants. (Id. at 1). The proposed
fourth amended complaint did not once mention Mole or Reed.
(Id.). Although the Defendants’ objected to Barr’s request,
the Court granted Barr leave to amend. (Doc. # 166). Barr was
instructed to file the proposed fourth amended complaint as
his operative complaint by March 6, 2017, and, in light of
the allowance for a fourth amended complaint, the Court denied
the Defendants’ motions to dismiss as moot. (Id.).
After the Court directed Barr to file the proposed fourth
amended complaint by March 6, 2017, he filed a response to a

5 

motion, even though the motion had already been denied as
moot. (Doc. # 167). The next day, on March 3, 2017, the Court
again directed Barr to file his proposed fourth amended
complaint by March 6, 2017. (Doc. # 168). Barr, however,
failed to comply with the Court’s directive.
On March 9, 2017, three days after the deadline for
filing the fourth amended complaint passed, Barr filed a
motion seeking a retroactive extension of time, as well as
his belated fourth amended complaint. (Doc. ## 170, 171).
That same day, Defendants filed the instant Motion seeking to
have this action involuntarily dismissed pursuant to Federal
Rule of Civil Procedure 41(b). (Doc. # 172).
Barr explained his failure to comply with the Courtordered deadline with the following statement:
For some unknown reason, the court’s CM ECF system
failed to complete service to the Plaintiff with
Documents #163 thru #168. Therefore, the Plaintiff
has not received any notice of court activity for
the documents listed. Upon filing a new document,
the plaintiff this morning, for the first time,
became aware of court activity.
As a result, the Plaintiff contacted the clerk,
Ariel Guzman this morning, 03-09-17, and attempted
to research the problem and hopefully has now
corrected these failures of service. Mr. Guzman reserved the Plaintiff with links to retrieve
documents #163, thru #168. The Plaintiff as of
today, retrieved those documents, any only due to
these notices became aware of deadlines issued
under Doc #166 and 167.

6 

(Doc. # 170 at 1). On that basis, Barr requested “the court
grant retroactively an extension of time to file the Fourth
Amended Complaint.” (Id. at 2).
For the reasons stated in its March 21, 2017, Order,
which granted Barr’s request for a retroactive extension of
time, the Court directed Barr to file a supplement by March
27, 2017, that provided more explanation as to the differences
between his Local Rule 3.01(g) certificate and the emails
submitted by defense counsel. (Doc. # 181 at 4-6). The Court
also warned Barr that he was under a continuing obligation to
regularly monitor the docket. (Id. at 4) (quoting Yeschick v.
Mineta, 675 F.3d 622, 629-30 (6th Cir. 2012)). Ultimately,
because the issue was one of compliance rather than notice,
and although Barr had failed to comply with another deadline,
the Court granted Barr’s request for a retroactive extension
of time. (Id. at 3-4, 6).
But, Barr again failed to meet a deadline. Defendants’
Motion under Rule 41(b) was filed on March 9, 2017. (Doc. #
172). “Each party opposing a motion or application shall file
within fourteen (14) days after service of the motion or
application a response . . . .” M.D. Fla. L.R. 3.01(b). Thus,
if Barr wished to oppose the Motion, his response was due by

7 

March 23, 2017. A review of the docket indicates that Barr
has not responded to the Motion as of this Order.
Barr also failed to comply with the Court’s March 21,
2017,

Order,

which

directed

Barr

to

file

a

supplement

explaining why his Local Rule 3.01(g) certificate seemed to
be in conflict with the emails submitted by defense counsel.
(Doc. # 181 at 6). The supplement was due March 27, 2017.
(Id.). As of this Order though, Barr has not filed the
supplement and has, therefore, failed to comply with a Court
order.
II.

Standard
“A district court has inherent authority to manage its

own docket ‘so as to achieve the orderly and expeditious
disposition of cases.’” Equity Lifestyle Props., Inc. v. Fla.
Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1240 (11th
Cir. 2009) (citation omitted); see also Taylor v. Nelson, 356
Fed. Appx. 318, 319 (11th Cir. 2009) (citing Betty K Agencies,
Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005)).
Furthermore,

the

Court

has

explicit

authority

under

the

Federal Rules of Civil Procedure “to dismiss a complaint for
failure to prosecute or failure to comply with a court order
or the federal rules.” Gratton v. Great Am. Commc’ns, 178
F.3d 1373, 1374 (11th Cir. 1999) (citing Fed. R. Civ. P.

8 

41(b)). “‘A district court [also] has authority under Federal
Rule[] of Civil Procedure 41(b) to dismiss actions for failure
to comply with local rules.’” World Thrust Films, Inc. v.
Int’l Family Entm’t, Inc., 41 F.3d 1454, 1456 (11th Cir. 1995)
(citation omitted).
Rule 41 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 power to invoke this sanction is necessary in order
to prevent undue delays in the disposition of pending cases
and to avoid congestion in the calendars of the District
Court.’” Equity Lifestyle Props., 556 F.3d at 1240 (citation
omitted). “Dismissal under Rule 41(b) is appropriate where
there is a clear record of ‘willful’ contempt and an implicit
or explicit finding that lesser sanctions would not suffice.”
Gratton, 178 F.3d at 1374; cf. Betty K Agencies, 432 F.3d at
1337-38 (“a dismissal with prejudice, whether on motion or
sua sponte, is an extreme sanction that may be properly
imposed only when: ‘(1) a party engages in a clear pattern of

9 

delay or willful contempt (contumacious conduct); and (2) the
district court specifically finds that lesser sanctions would
not suffice.’”)).
“[T]he harsh sanction of dismissal with prejudice is
thought to be more appropriate in a case where a party, as
distinct from counsel, is culpable.” Betty K Agencies, 432
F.3d at 1338. “‘Mere negligence or confusion is not sufficient
to justify a finding of delay or willful misconduct.” Birdette
v. Saxon Mortg., 502 Fed. Appx. 839, 840 (11th Cir. 2012)
(quoting Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir.
2006)).

But,

“‘dismissal

upon

disregard

of

an

order,

especially where the litigant has been forewarned, generally
is not an abuse of discretion.’” Id. at 841(quoting Moon, 863
F.2d at 837).
III. Analysis
In full cognizance of the gravity of the dismissal
effected by this Order, the Court has carefully reviewed the
record. And that review leads the Court to determine that the
criteria for dismissal under Rule 41(b) have been met.
With respect to the requirement that “a party engage in
a clear pattern of delay or willful contempt (contumacious
conduct),” Betty K Agencies, 432 F.3d at 1338, the record is

10 

replete with instances of Barr delaying the proceedings or
willfully ignoring a Court order. Those instances include:
1. Denial of a motion filed by Barr because it violated
Local Rule 3.01(a), in which the Court stated,
Although Plaintiff is proceeding pro se, he
must still comply with the Federal Rules of
Civil Procedure and the Local Rules. [Johnson,
578 Fed. Appx. at 930] (stating, “[a] pro se
litigant ‘is subject to the relevant law and
rules of court, including the Federal Rules of
Civil Procedure’” (quoting [Moon, 863 F.2d at
837]). . . . Plaintiff may refile his Motion,
but is cautioned that he must comply with all
Local Rules, as well as the Federal Rules of
Civil Procedure.
(Doc. # 46);
2. Dismissal of this action because Barr failed to timely
respond to a motion to dismiss. (Doc. # 50);
3. Denial of a motion filed by Barr because it violated
Local Rule 3.01(g). (Doc. # 52);
4. Order reinstating this action and stating,
the Court reminds Barr yet again that he must
comply with all Local Rules and the Federal
Rules of Civil Procedure. [Johnson, 578 Fed.
Appx. at 930] (stating, “[a] pro se litigant
‘is subject to the relevant law and rules of
court, including the Federal Rules of Civil
Procedure’” (quoting [Moon, 863 F.2d at 837
]). The Court takes deadlines seriously and it
is Barr’s responsibility to ensure that he
complies with such deadlines or seeks relief
by filing an appropriate motion.
(Doc. # 56 at 2-3).

11 

5. Failure to file proof of service as directed by Court
order, resulting in sua sponte extension of time to
effect service. (Doc. ## 82, 100);
6. Filing of two frivolous interlocutory appeals. (Doc.
## 111, 132);
7. Denial of a motion filed by Barr because it violated
Local Rule 3.01(a). (Doc. # 131 at 8-9);
8. Denial of a motion filed by Barr because it violated
Local Rule 3.01(a). (Doc. # 159);
9. Entry of order reiterating that Barr must comply with
Local Rules and Federal Rules of Civil Procedure.
(Doc. # 178 at 5);
10.

Failure to comply with Court order setting deadline

for filing fourth amended complaint, requiring the
Court

to

warn

Barr

“that

he

has

a

continuing

obligation to regularly monitor the docket.” (Doc. #
181 at 4) (quoting Yeschick, 675 F.3d at 629-30);
11.

Even after the Court explained the consequences of

failing to respond to a motion and repeatedly reminded
Barr that he must comply with the Local Rules and the
Federal Rules of Civil Procedure, Barr failed to
respond to the instant Motion; and

12 

12.

Failure to comply with the Court’s March 21, 2017,

Order (Doc. # 181), which directed Barr to file a
supplement by March 27, 2017.
The record also shows that Barr has caused substantial
delay—indeed, this action is now in its eighteenth month—by,
among

other

methods,

repeatedly

filing

motions

for

clarification and reconsideration. See, (Doc. ## 62, 79, 161,
169, 187). Barr’s most recent motion for clarification was
simply frivolous and bordered on the realm of vexatiously
multiplying the proceedings.
Further, at the risk of redundancy, because Barr is
proceeding pro se, he has no counsel. Thus, it is Barr who is
culpable for the actions listed above. See Betty K Agencies,
432 F.3d at 1338 (stating, dismissal is “more appropriate in
a case where a party, as distinct from counsel, is culpable”).
The

Court

finds

it

appropriate

to

reiterate:

“[a]s

demonstrated above and throughout the record, the Court has
been more than flexible with Barr, giving him chance after
chance to file a complaint that complies with the Federal
Rules of Civil Procedure. But, at some point, enough is
enough. This action has reached that point.” (Doc. # 168 at
6). In spite of that warning, Barr failed to timely file his
fourth amended complaint as directed by the Court, failed to

13 

respond to the instant Motion seeking dismissal under Rule
41(b), and failed to comply with a Court order. For these
reasons, the Court determines that Barr has engaged in a clear
pattern of delay and has repeatedly violated the Local Rules
and orders of this Court despite warning after warning.
The Court now reaches the question of whether lesser
sanctions
timely

would

respond,

suffice.
the

When

Court

Barr

previously

dismissed

the

failed

action

to

without

prejudice. (Doc. # 50). Ultimately, the action was reopened
and the Court explained why failing to respond resulted in
such dismissal. (Doc. ## 56, 63). Those three orders placed
Barr on notice of the consequences of not timely responding
to a motion to dismiss and reminded him that he must comply
with the Local Rules and Federal Rules of Civil Procedure.
(Doc. # 56 at 2-3). Those orders, however, had no long-term
effect, for Barr’s pattern of delay and disregard for the
Local Rules and the Court’s orders continued, as previously
documented

herein.

Dismissal

without

prejudice

is

thus

insufficient.
In addition, because he is not an attorney, the Court
cannot sanction him in his capacity as an officer of the court
or in a professional capacity. Likewise, the Florida Bar
cannot sanction him for the same reason, even if the Court

14 

filed

a

report

proceeding

in

with

the

forma

Florida

pauperis

Bar.

Further,

thereby

Barr

making

is

monetary

sanctions a hollow remedy. Given the circumstance with which
the Court is confronted—viz., a pro se plaintiff proceeding
in forma pauperis who, in spite of the Court’s multiple
warnings, continually violates the Local Rules, needlessly
multiplies the proceedings, and fails to comply with Court
orders—the Court finds that no lesser sanction will suffice.
Therefore,

this

action

is

dismissed

with

prejudice

pursuant to Federal Rule of Civil Procedure 41(b).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendants One Touch Direct, LLC, AT&T Services, Inc.,
and

DPG

Employee

Leasing

LLC’s

Motion

to

Dismiss

Plaintiff’s Claims against Defendants with Prejudice
(Doc. # 172) is GRANTED.
(2)

This action is DISMISSED WITH PREJUDICE pursuant to
Federal Rule of Civil Procedure 41(b).

(3)

All other motions that are currently pending are DENIED
AS MOOT.

(4)

The Clerk shall CLOSE this case.

15 

DONE and ORDERED in Chambers in Tampa, Florida, this
28th day of March, 2017.

16