Fondo de Proteccion Social de los Depositos Bancarios v. Diaz Reus & Targ, LLP

Filing 118

ORDER DISMISSING CASE, adopting report and recommendations re 116 Order on Motion to Compel,,,,,, ; granting in part and denying in part 114 Motion to Dismiss for Lack of Prosecution Closing Case. Motions terminated: 114 Defendant's MOTION to Dismiss for Lack of Prosecution 24 Amended Complaint, filed by Diaz Reus & Targ, LLP. Signed by Judge Marcia G. Cooke on 10/4/2017. (tm) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-21266-Civ-COOKE/TORRES
FONDO DE PROTECCION SOCIAL DE LOS
DEPOSITOS BANCARLOS, et al.,
Plaintiff,
vs.
DIAZ, REUS & TURG, LLP,
Defendant.
_______________________________________/
ORDER DISMISSING CASE
THIS MATTER is before me on Defendant’s Motion for Involuntary Dismissal with
Prejudice (ECF No. 114) and the Honorable Edwin G. Torres’ Report and Recommendation
that the case be dismissed under Federal Rule of Civil Procedure 41 (ECF No. 116). Plaintiff
did not respond to Defendant’s Motion, nor did it file objections to Judge Torres’ Report,
and the time to do so has passed. I have reviewed the pertinent portions of the record, and
am otherwise fully advised in the premises. For the reasons discussed below, Defendant’s
Motion for Involuntary Dismissal is granted in part and denied in part and Judge Torres’
Report and Recommendation is adopted.
I. DISCUSSION
On August 22, 2017, Plaintiff’s counsel filed a Motion to Withdraw as Counsel (ECF
No. 110), citing their inability to communicate effectively with Plaintiff as the reason for
withdrawal,1 along with a fundamental disagreement between Plaintiff and counsel regarding
the direction of the litigation. Plaintiff’s counsel was granted leave to withdraw on August
25, 2017. See Order, ECF No. 113. The Order allowed Plaintiff until September 5, 2017 to
obtain new counsel and cautioned that because Plaintiff was a corporate/governmental
entity, “failure to retain counsel may provide grounds for the Court to dismiss the action for

1
In their Motion to Withdraw as Counsel, Plaintiff’s counsel mentions that the lack of
communication “may stem from the civil unrest that has plagued Venezuela over the last
few months.” ECF No. 110, ¶ 3.
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failure to prosecute.” Id. Plaintiff did not obtain new counsel by the deadline, nor does
Plaintiff currently have counsel. On September 6, 2017, Defendant filed its Motion for
Involuntary Dismissal with Prejudice (ECF No. 114). Judge Torres issued his Report and
Recommendation (ECF No. 116) on September 26, 2017, recommending that the case be
dismissed under Rule 41 for Plaintiff’s failure to comply with the Order requiring Plaintiff to
obtain new counsel (ECF No. 113) and for failure to prosecute.
Federal Rule of Civil Procedure 41(b) “allows a court to dismiss an action if the
plaintiff, inter alia, fails to comply with a court order.” McDonald v. Emory Healthcare Eye Ctr.,
391 F. App’x 851, 853–54 (11th Cir. 2010). However, “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 delay or willful contempt (contumacious conduct); and (2)
the district court specifically finds that lesser sanctions would not suffice.” Betty K Agencies,
Ltd. v. M/V MONADA, 432 F.3d 1333, 1337–38 (11th Cir. 2005) (internal quotation marks
omitted). In its Motion, Defendant argues that Plaintiff’s Complaint should be dismissed with
prejudice. Defendant urges a finding of contumacious conduct because Plaintiff failed to
comply with several Court Orders and has failed to prosecute the case. Defendant points to
Plaintiff’s failure to comply with the Order of Referral to Mediation (ECF No. 81) and Order
requiring new counsel (ECF No. 113), as well as Plaintiff’s failure to submit its witness list,
submit to deposition, and propound discovery.2 Defendant also contends that lesser sanctions
will not suffice because Plaintiff has “completely” neglected the prosecution of this case.
ECF No. 114, p. 8. While I agree that a dismissal of this case is appropriate based on
Plaintiff’s failure to comply with a Court Order and failure to prosecute, I do not find a
dismissal with prejudice is warranted on this record.
II. CONCLUSION
For the reasons explained above, it is hereby ORDERED and ADJUDGED that:
1. Defendant’s Motion to Dismiss (ECF No. 114) is GRANTED in part and
DENIED in part.

2
I note that while Defendant claims Plaintiff “has conducted no discovery other than
serving a request for production of documents on [Defendant] and a third-party subpoena,”
ECF No. 114, p. 6, Defendant conveniently leaves out Plaintiff’s several motions to compel
production of documents. See ECF Nos. 25, 82, 90.
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2. Judge Torres’ Report and Recommendation (ECF No. 116) is ADOPTED.
3. Plaintiff’s Complaint (ECF No. 1) is DISMISSED without prejudice.
4. The Clerk shall CLOSE this case. All pending motions, if any, are DENIED as
moot.
DONE and ORDERED in Chambers, Miami, Florida, this 4th day of October 2017.

Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of record

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