Rhodes v. Credit Protection Association

Filing 44

ORDER: Plaintiff Rayon Rhodes shall file a supplement to his Response to Order to Show Cause (Doc. # 40 ), providing the supplemental information as directed herein, no later than December 29, 2016. Failure to comply will result in dismissal of this action with prejudice and may result in sanctions against Rhodes. Signed by Judge Virginia M. Hernandez Covington on 12/20/2016. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RAYON RHODES
Plaintiff,
v.

Case No. 8:15-cv-2790-T-33MAP

CREDIT PROTECTION ASSOCIATION,
Defendant.
_____________________________/
ORDER
This matter comes before the Court upon the filing of
Plaintiff Rayon Rhodes’ Response to Order to Show Cause (Doc.
# 40), filed on December 19, 2016. For the reasons below, the
Court requires more information.
Discussion
Prior to the commencement of the instant action, Rhodes
filed

an

identical

lawsuit

against

Defendant

Credit

Protection Association. Rhodes v. Credit Prot. Ass’n, No.
8:15-cv-2184-T-33TBM. In that earlier-filed action, the Court
directed Rhodes to file a notice of mediation. When Rhodes
failed to comply, the Court directed Rhodes to file the notice
of mediation by a date certain. But, Rhodes failed to comply.
As such, the Court entered an Order to Show Cause, directing
Rhodes to explain why the action should not be dismissed. As

with the Court’s prior Orders, the Order to Show Cause was
not heeded. Accordingly, the Court dismissed the earlierfiled action for lack of prosecution.
Approximately
identical

complaint

two

months

against

later,

Credit

Rhodes

filed

Protection.

an

Rhodes’

second-filed action was assigned to the Honorable James D.
Whittemore, United States District Judge, but was thereafter
transferred to the undersigned. (Doc. # 11). The Court vacated
the case management and scheduling order entered while the
case was pending before Judge Whittemore, and entered its
Scheduling Order. (Doc. ## 13-14).
The same sequence of events that led to dismissal of the
first-filed action for failure to prosecute then occurred in
this action. Rhodes again failed to timely file a notice of
mediation as directed. (Doc. # 15). The Court directed Rhodes
to file the notice of mediation by a date certain; however,
that deadline was also disregarded. (Doc. # 16). Accordingly,
the Court ordered Rhodes to show cause why this action should
not be dismissed for failure to prosecute. (Id.). Rhodes did
not respond as directed. After having its Orders consistently
flouted (in two different cases no less), the Court dismissed
this action for failure to prosecute. (Doc. # 18).

2

About two weeks after the dismissal, Rhodes moved to
vacate

the

Court’s

September

2,

2016,

dismissal

and

reinstatement of this action. (Doc. # 19). Although Credit
Protection opposed the relief sought (Doc. # 20), the Court,
while declining to vacate its September 2, 2016, Order,
reopened the action. (Doc. # 21). That Order specifically
remarked

upon

“Rhodes’

lackadaisical

approach

to

[this]

litigation,” noted the “deadlines contained in the Court’s .
. . Scheduling Order shall govern,” and directed that “the
parties shall file a notice of mediation advising the Court
of the day, time, and location of the mediation conference no
later than noon on Wednesday, October 5, 2016.” (Id. at 4).
The case, however, remained inert as Rhodes yet again failed
to timely file a notice of mediation. In response, the Court
again ordered Rhodes to show cause why this action should not
be dismissed. (Doc. # 24).
Rhodes filed his response to the Court’s Order to Show
Cause (Doc. # 27), but the Court found it to be inadequate
and

directed

explain[ing]

him
why

to
he

file

a

missed

supplement

yet

another

“specifically
Court-ordered

deadline,” (Doc. # 28). In his supplement, Rhodes stated that
he was not available for any of the dates within the deadline
to

conduct

mediation.

(Doc.

#

3

30

at

1-2).

Rhodes

also

“assure[d] the Court that something of this nature[, i.e.,
failing to comply with a Court Order,] w[ould] not happen
again.” (Id. at 2). On the same day that he filed his
supplement, Rhodes filed a motion to extend the deadline to
conduct mediation. (Doc. # 29). The Court granted the motion,
stating, “[t]he deadline to conduct mediation is December 19,
2016. No further extensions of time will be granted with
respect to the mediation deadline.” (Doc. # 31).
On the morning of December 19, 2016, the last echo of
Rhodes’ assurance faded away as Rhodes failed to appear in
person for the mediation conference as directed. (Doc. # 37).
The Court entered another Order to Show Cause, this time
ordering Rhodes “to show cause why this action should not be
dismissed for (1) failure to prosecute and (2) continual
disregard for the Court’s orders . . . .” (Doc. # 38). Rhodes
filed his response, supported by a declaration, the same day.
(Doc. # 40).
In his declaration, Rhodes states that he “currently
reside[s] in Valley Head, Alabama with his fiancé and child,”
and that he “had intended to drive to Tampa, Florida for the
mediation . . . on December 19, 2016.” (Doc. # 40-1 at ¶¶ 45). Rhodes goes on to state that “[o]n December 18, 2016, the
winter storms that had come though [sic] Valley Head caused

4

a large tree next to [his] home to fall on [his] house and
crash though the house.” (Id. at ¶ 7). Rhodes “took a photo
of the damage caused by the tree and emailed that photo to
one of [his] attorneys . . . and explained that as a result
of the tree falling on [his] house [he] would not be able to
appear the next day,” which presumably is a reference to
December 19, 2016. (Id. at ¶ 9). Rhodes also “spoke with one
of [his] attorneys . . . and explained that a tree had fallen
on [his] house due to storms and asked if [he] would be able
to still participate in the mediation over the telephone,” on
“the morning of December 19.” (Id. at ¶ 11). A company has
been scheduled to remove the tree and start repairs to his
house, “which [he] had to be present to oversee.” (Id. at ¶
10).
Hours after Rhodes filed his response, Credit Protection
filed a supplement arguing that Rhodes falsely claimed that
the picture attached as Exhibit B to his response is a picture
of his house as of December 18, 2016. (Doc. # 43 at ¶¶ 2-9);
see also (Doc. # 40 at ¶ 3) (“On Sunday, December 18, violent
storms passed through the town where Plaintiff currently
resides, Valley Head, Alabama, and a [sic] cause a very large
tree to uproot and fall on Plaintiff’s home on December 18
causing significant damage to Plaintiff’s home. See Exhibit

5

A;

see

also

picture

of

Plaintiff’s

home

with

the

aforementioned tree, attached hereto as Exhibit B.”); (Doc.
# 40-1 at ¶ 9) (“I took a photo of the damage caused by the
tree and emailed that photo to one of my attorneys . . . .”).
The Court also notes that Rhodes has filed a motion to
withdraw his response (Doc. # 41) and that Rhodes’ counsel
has moved to withdraw as counsel (Doc. # 42). The Court has
every right to expect honesty and candor from parties and
attorneys appearing before it. In the face of the gravity of
the situation, the Court requires more information, detailed
below, before determining the appropriate next step.
The first hole in Rhodes’ explanation that needs further
explanation is what time the tree fell. Valley Head, Alabama
is approximately eight-and-a-half hours away by car from
Tampa, Florida. And, with the mediation being scheduled for
9:30am on December 19, 2016, Rhodes would have had to have
departed from Valley Head no later than 1:00am on December
19, 2016, and drive straight through the night in order to
arrive in Tampa on time. The unlikely nature of such a moonlight

drive

undercuts

the

persuasiveness

of

Rhodes’

explanation. Moreover, Rhodes’ excuse is only applicable if
the tree fell before he should have otherwise departed. Thus,
Rhodes

must

supplement

his

declaration

6

by

submitting

a

statement under oath explaining to the Court when he intended
to depart for Tampa and when the tree fell.
Second, although Rhodes does not occupy the house alone,
he states that he “had to be present to oversee” the removal
of the tree. (Id. at ¶¶ 4, 10). Other than his conclusory
statement that he “had to be present,” Rhodes provides no
explanation as to why his fiancé or someone else could not
oversee the removal of the tree, nor does he otherwise explain
why his presence was required in Valley Head so as to preclude
him from complying with a Court Order. As such, Rhodes must
supplement his declaration by submitting a statement under
oath providing this information.
Third, Rhodes’ declaration (and his response) does not
explain why, despite having at least eight-and-a-half hours,1
he did not seek leave of Court for either an extension of
time or to appear telephonically at the mediation conference.
In fact, the declaration demonstrates that Rhodes contacted

1

The Court says at least eight-and-a-half hours because that
is the approximate travel time required to reach Tampa from
Valley Head and, if Rhodes had not left early enough to
account for travel time, he would have missed the mediation
conference and still have been in violation of the Court’s
Scheduling Order. Thus, in order for the tree excuse to even
come into play, the tree would have had to have fallen before
Rhodes should have left Valley Head. But, as explained, Rhodes
failed to provide the specific timing for the sequence of
events on December 18, 2016.

7

his counsel at some point on December 18 and again on the
morning of December 19 to inform his counsel that he would
not be attending the mediation in person. (Id. at ¶¶ 9, 11).
In spite of this advance notice, Rhodes did not seek leave of
Court. Therefore, Rhodes must supplement his declaration by
submitting a statement under oath explaining (1) what time he
first contacted his counsel, by any means, to inform counsel
that he would not be attending the mediation conference and
(2) why he did not seek leave of Court to continue the
mediation

conference

or

to

appear

telephonically

at

the

mediation conference. If ever there was a time to utilize
Local Rule 3.01(e), this would have been such an instance.
Had Rhodes sought leave of Court, rather than unilaterally
deviating from the Court’s Scheduling Order, the Court would
have worked with him given the circumstances.
Fourth, Rhodes indicates that he has contracted a tree
removal company, but he provides no corroborating evidence.
As such, Rhodes must supplement his declaration by submitting
any and all documentation evincing when the tree fell, when
Rhodes contracted with any person or company to remove the
tree, and when said contracted person or company was scheduled
to remove the tree.

8

Fifth, Rhodes must explain why the picture attached as
Exhibit B to his response (Doc. # 40-2) is identical to the
photograph found on the website cited to by Credit Protection
(Doc. # 43 at ¶ 8). Furthermore, Rhodes must explain, under
oath, when he putatively took the picture attached as Exhibit
B to his response and produce evidence supporting his claim.
The Court’s efforts to bring this action to a timely,
just, and inexpensive resolution have been frustrated time
and again by Rhodes’ continual inability to follow the Court’s
Orders and comply with the Court’s deadlines. When the Court
is forced to expend large amounts of time attempting to gain
the compliance of a plaintiff insistent upon delaying an
action, judicial resources are needlessly wasted, which, in
turn, places a drag on the Court’s ability to effectively
manage its docket. Heretofore, the Court has been more than
patient with Rhodes, giving him chance after chance to comply.
When the Court sought fairness in an abundance of caution,
Rhodes took advantage, but those missteps have led to the
thin ice upon which Rhodes now finds himself standing.
Rhodes

shall

file

a

supplement

to

his

response

as

directed herein no later than December 29, 2016. Failure to
comply will result in dismissal of this action with prejudice
and may result in sanctions against Rhodes.

9

Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff Rayon Rhodes shall file a supplement to his
Response to Order to Show Cause (Doc. # 40), providing the
supplemental information as directed above, no later than
December 29, 2016. Failure to comply will result in dismissal
of this action with prejudice and may result in sanctions
against Rhodes.
DONE and ORDERED in Chambers in Tampa, Florida, this
20th day of December, 2016.

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