Holmes v. Alford et al
Filing
19
ORDER AND OPINION directing Plaintiff to SHOW CAUSE, by February 28, 2014, why the case should not be dismissed. The SHOW CAUSE order will include a requirement that plaintiff pay the attorneys fees associated with preparing and filing Forest Citys Motion to dismiss 18 . If plaintiff does not meet the requirements of the SHOW CAUSE order by the deadline specified below, the action will be DISMISSED with prejudice. It is further ordered that the Court conditionally grants defendant Forest Citys Motion to Dismiss 18 . Signed by Judge Julie E. Carnes on 2/3/14. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LINDA C. HOLMES,
Plaintiff,
v.
CIVIL ACTION NO.
1:12-cv-1713-JEC
CLIFFORD ALFORD, JR. and FOREST
CITY ENTERPRISES, INC.,
Defendants.
ORDER & OPINION
This
case
is
before
the
Court
on
defendant
Forest
City
Enterprises, Inc.’s (“Forest City’s”) Motion to Dismiss Due to
Violation of Court Orders [18].
The Court has reviewed the record
and the arguments of the parties and, for the reasons set out below,
concludes
that
Forest
City’s
Motion
[18]
should
be
GRANTED
conditionally. As indicated below, the Court will give plaintiff one
final opportunity to SHOW CAUSE why the case should not be dismissed.
The SHOW CAUSE order will include a requirement that plaintiff pay
the attorney’s fees associated with preparing and filing Forest
City’s Motion to dismiss [18].
If plaintiff does not meet the
requirements of the SHOW CAUSE order by the deadline specified below,
the action will be DISMISSED with prejudice.
AO 72A
(Rev.8/82)
BACKGROUND
This case arises out of plaintiff’s alleged shooting by
defendant Clifford Alford on April 23, 2010.
(Compl. [1] at ¶ 16.)
The shooting occurred in the Stonecrest Mall parking lot, where
plaintiff had parked her car while she worked her shift at Kohl’s
Department Store.
(Id. at ¶¶ 13-15.)
According to plaintiff, the
shooting resulted in part from the lax security provided by defendant
Forest City, the owner of Stonecrest Mall.
(Id. at ¶¶ 4, 30-39.)
Shortly after the case was filed, the Court issued a notice
reminding counsel for the parties to submit a joint preliminary
report and discovery plan and initial disclosures in accordance with
Local Rules 16.2 and 26.1.
(Notice [5].)
Defendant Forest City is
the only party that complied with the notice.
and Scheduling Order [6].)
(Preliminary Report
In the preliminary report, counsel for
Forest City indicated that he had attempted without success to
communicate with plaintiff’s counsel or obtain his consent to the
report.
(Id. at 1.)
The report was completed solely by defense
counsel, and was not signed by plaintiff’s attorney.
(Id. at 7.)
Therefore, Forest City subsequently moved to stay the case
pending the related criminal prosecution of defendant Alford.
(Def.
Forest City’s Mot. to Stay [11].) Plaintiff failed to respond to the
motion,
Pursuant
which
to
the
the
Court
granted
Court’s
order,
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AO 72A
(Rev.8/82)
as
unopposed.
the
case
(Order
was
[12].)
stayed
and
administratively terminated for approximately nine months.
(Order
[16].)
The Court reopened the case on July 3, 2013, upon its receipt of
Forest
City’s
status
report
indicating
that
Alford’s
proceeding had concluded with a negotiated plea agreement.
Report [15] and Order [16].)
criminal
(Status
Forest City noted in the status report
that plaintiff had previously failed to participate in drafting or
reviewing the initial preliminary report, and also that she had
failed to respond to Forest City’s initial disclosures and other
discovery requests made by Forest City prior to the stay.
Report [15] at 2.)
(Status
In its order reopening the case, the Court
directed plaintiff to submit a joint preliminary report and respond
to Forest City’s initial disclosures and other outstanding discovery
requests by August 5, 2013.
(Order [16] at 2.)
The Court further
instructed plaintiff that defendant Alford must be served by August
30, 2013.
(Id.)
Plaintiff did not respond to the Court’s order.
Forest City
submitted another preliminary report on its own behalf by the August
5 deadline.
motion
to
(Preliminary Report [17].)
dismiss
the
action
under
Forest City then filed a
Rule
37(b)
and
Local
Rule
41.3A(2), due to plaintiff’s ongoing failure to comply with the
Court’s orders or respond to discovery.
Dismiss [18].)
Plaintiff did not respond to Forest City’s motion.
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AO 72A
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(Def. Forest City’s Mot. to
DISCUSSION
As indicated in Forest City’s briefing, the Court has the
authority to dismiss this action under either Rule 37 or Rule 41 of
the Federal Rules of Civil Procedure.
Rule 37(b) expressly permits
the Court to enter an order dismissing an action as a result of a
party’s failure “to obey an order to provide or permit discovery.”
FED. R. CIV. P. 37(b)(2)(A).
Rule 41 similarly authorizes the Court
to dismiss an action “[i]f the plaintiff fails to prosecute or to
FED. R. CIV. P. 41(b).
comply with . . . a court order.”
See also LR
41.3, NDGa (providing for dismissal where a plaintiff “fail[s] or
refuse[s] to obey a lawful order of the court”).
Based on the record in this case, plaintiff has failed to comply
with several orders of the Court providing for discovery and other
lawful orders concerning the preliminary report and service of one of
the defendants in the case.
(See Notice [5] and Order [16].)
Plaintiff’s counsel has ignored lawful discovery requests and refused
to communicate either with the Court or the opposing parties.
Indeed, plaintiff’s counsel does not appear to have taken any action
in the case since filing the complaint in May, 2012.
(Compl. [1].)
See LR 43.1(A)(3)(providing for the dismissal of “[a] case [that] has
been pending in [the] court for more than six (6) months without any
substantial proceedings of record”). Meanwhile, Forest City has been
incurring attorney’s fees in an effort to defend itself in an action
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AO 72A
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that plaintiff has simply refused or neglected to prosecute.
Although dismissal of an action is an extreme sanction, it is
authorized when there is a “clear pattern of delay or willful
contempt”
and
“lesser
sanctions
would
not
suffice.”
Betty
K
Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1338 (11th Cir. 2005).
Both of these requirements are met here.
This case does not involve
the violation of an isolated court order or a few missed deadlines,
but the complete disregard of every order that the Court has issued
and all lawful discovery propounded by Forest City.
See Williams v.
Talladega Cmty. Action Agency, 2013 WL 4712742 at *1 (11th Cir.
2013)(upholding the district court’s dismissal of an action as a
result of the plaintiff’s failure to comply with the court’s order to
correct her shotgun pleading).
On at least one occasion, plaintiff
was specifically warned that failure to comply with the Court’s
directives
could
result
dismissal of the action.”
Nevertheless,
opportunity
to
the
avoid
“in
sanctions
being
imposed,
such
as
(Notice [5].)
Court
will
dismissal.
give
plaintiff
Accordingly,
the
one
Court
final
will
conditionally GRANT Forest City’s motion to dismiss [18], but will
allow plaintiff to SHOW CAUSE, via a motion to reconsider filed by
Friday, February 28, 2014, why the action should not be dismissed.
In her submission, plaintiff should specify the reasons for her
failure to (1) comply with the Court’s orders and (2) respond to
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Forest City’s discovery requests.
Plaintiff should also indicate
that she is able and willing to reimburse Forest City for the
attorney’s fees incurred in preparing and filing its motion to
dismiss.
Assuming plaintiff meets both of these requirements by the
February 28, 2014 deadline, the Court will reevaluate the motion to
dismiss.
If plaintiff does not meet these requirements, the action
against defendant Forest City will be DISMISSED with prejudice.
The
Court will not grant any extensions of the deadline.
CONCLUSION
For
the
foregoing
reasons,
the
Court
conditionally
defendant Forest City’s Motion to Dismiss [18].
GRANTS
As set out above,
plaintiff must seek reconsideration of this Order, by February 28,
2014, and must demonstrate why the action should not be dismissed, in
a filing that (1) explains the reason for plaintiff’s failure to
comply with the Court’s orders and Forest City’s discovery requests,
(2)
indicates
that
plaintiff
has
complied
with
her
discovery
obligations, and (3) indicates plaintiff’s ability and willingness to
reimburse Forest City for its attorney’s fees in seeking dismissal.1
1
To comply with the latter, plaintiff’s counsel must obviously
take the initiative to contact defendant’s counsel to determine the
amount of these fees.
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AO 72A
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SO ORDERED, this 3rd day of February, 2014.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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