Bryant v. Bank of America et al

Filing 26

ORDER GRANTING 24 Motion to Lift the Stay and Dismiss Plaintiff's Complaint. The stay is lifted and 1 Plaintiff's Complaint is DISMISSED WITH PREJUDICE. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 5/15/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
EARL A. BRYANT,
Plaintiff,
v.
BANK OF AMERICA and MERRILL
LYNCH WEALTH MANAGEMENT,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 5:12-CV-52 (MTT)

ORDER
This matter is before the Court on the Defendants’ motion to lift the stay and
dismiss the Plaintiff’s complaint. (Doc. 24). On August 10, 2012, the Court entered an
Order granting the Defendants’ motion to compel arbitration and staying the case
pending the outcome of arbitration. (Doc. 9). The Plaintiff subsequently filed a motion
for reconsideration (Doc. 10), a motion to compel arbitration at the Defendants’ expense
in Macon, Georgia (Doc. 13), and a motion for a hearing (Doc. 18), which were all
denied. The Court warned the Plaintiff that he “shall proceed with arbitration in
accordance with the agreements he signed or face appropriate sanctions.” (Doc. 19 at
1). The Plaintiff then filed a notice of appeal on November 6, 2012 (Doc. 20), which the
Eleventh Circuit dismissed on January 31, 2013 for lack of jurisdiction (Doc. 22).
Despite further correspondence from the Defendants regarding the liquidation
and transfer of his assets, the Plaintiff has still not filed an arbitration claim. The
Defendants now move the Court to dismiss the Plaintiff’s case pursuant to Fed. R. Civ.
P. 41(b). The Plaintiff did not respond to the Defendants’ motion.

Rule 41(b) permits a defendant to move to dismiss an action “[i]f the plaintiff fails
to prosecute or to comply with these rules or a court order.” Fed. R. Civ. P. 41(b).
There is “a two-part analysis for determining when an action should be dismissed as a
sanction. There must be both a clear record of willful conduct and a finding that lesser
sanctions are inadequate.” Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006)
(citation omitted). Pro se litigants are not excused from complying with the Federal
Rules of Civil Procedure or other court orders. Ozburn v. Engineered Quality Plastics
Siegel-Roberts Plastics, Inc., 2006 WL 435672, at *3 (M.D. Ga.) (citations omitted).
Here, there is a clear record of willful disregard of the Court’s orders. Despite
multiple Orders directing the Plaintiff to arbitrate his claims in accordance with the
mandatory arbitration provisions in the agreements at issue, the Plaintiff has failed to do
so. Furthermore, lesser sanctions are insufficient, as the Court is unwilling to place
additional burdens on the Defendants, who have already spent considerable time and
effort trying to contact the Plaintiff to proceed to arbitration. While dismissal is an
extraordinary remedy, the Plaintiff’s continued disregard of the Court’s Orders after
being warned that he could be subjected to sanctions for failure to arbitrate make
dismissal appropriate here. See id. (citing Moon v. Newsome, 863 F.2d 835, 836 (11th
Cir. 1989)). Accordingly, the Defendants’ motion is GRANTED. The stay is lifted, and
the Plaintiff’s complaint is DISMISSED with prejudice.
SO ORDERED, this 15th day of May, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

-2-