Dove v. Grantier et al

Filing 35

ORDER dismissing as moot 32 Motion for Summary Judgment. ORDER DISMISSING with prejudice 1 Plaintiff's Complaint for failure to prosecute. Accordingly, the Clerk of Court is DIRECTED to enter the appropriate judgment of dismissal and to close this case. The Clerk of Court is further DIRECTED to serve a copy of this Order upon the Plaintiff. Signed by Chief Judge Lisa G. Wood on 9/22/2015. (csr)

3 the Sniteb Statefs flitritt Court
for the boutbern flitrttt of deoria
Jgrunftick flthiion
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ERIC DOVE,

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Plaintiff,

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V.

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CHARLES FRANCIS GRANTIER and
CRETE CARRIER CORP.,
Defendants.

CV 213-163

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ORDER

This matter comes before the Court on Plaintiff Eric Dove's
("Plaintiff's") failure to comply with several Court orders
requiring that he respond to the Notion for Summary Judgment
filed by Defendants Charles Francis Grantier ("Grantier") and
Crete Carrier Corporation ("Crete Carrier") . For the following
reasons, the Court finds that Plaintiff has failed to prosecute
his claims and, therefore, DISMISSES this action without
prejudice at this time. Accordingly, Defendants' Notion for

Summary Judgment (dkt. no. 32) is DISMISSED as moot.
FACTUAL BACKGROUND

On May 17, 2012, Plaintiff was involved in an automobile
accident with Defendant Grantier, an employee of Defendant Crete
Carrier, in Kingsland, Georgia. Dkt. No. 1-1, ¶I 8-9.
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Plaintiff filed suit against Defendants in the Superior Court of
Camden County on October 1, 2013, id. at pp. 4, 6, and
Defendants removed the action to this Court on November 15,
2013, dkt. no. 1. Plaintiff seeks damages from Defendants,
alleging that Defendant Grantier was negligent in causing the
accident and Defendant Crete Carrier is vicariously liable for
Defendant Grantier's actions. Dkt. No. 1-1, 191 8-12.
On July 2, 2014, Plaintiff's counsel filed a Notion to
Withdraw as counsel of record, see dkt. nos. 25, 28, which the
Court granted in an Order dated September 22, 2014, dkt. no. 31.
In that Order, the Court directed that all subsequent
correspondence and filings be served upon Plaintiff at his
residence. See Dkt. No. 31. In addition, the Court stayed all
deadlines in this case for a period of sixty days to permit
Plaintiff time to retain new counsel. Id. However, as of the
date of this Order, no counsel has entered an appearance on
Plaintiff's behalf.
On January 15, 2015, Defendants filed a Motion for Summary
Judgment. Dkt. No. 32. The Court issued a Notice on January
16, 2015, which advised Plaintiff of his obligation to respond
to Defendants' Motion for Summary Judgment on or before February
8, 2015, or else face possible dismissal of his claims. Dkt.
No. 33. Specifically, the Court's Notice stated as follows:

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Federal Rule of Civil Procedure 56 governs summary
judgment motions. You should consult this rule as
well as the Local Rules for the Southern District of
Georgia, especially Local Rule 56.1. Pursuant to
Rules 5 & 6 of the Federal Rules of Civil Procedure, a
response is due within 21 days of service, if proper
service was made by hand delivery. IF YOU DO NOT
RESPOND AS DIRECTED IN THIS NOTICE, THE COURT MAY
ENTER A FINAL JUDGMENT AGAINST YOU WITHOUT A FULL
TRIAL OR ANY OTHER PROCEEDINGS.
Id. Notwithstanding this instruction, Plaintiff did not file
any response in opposition to Defendants' Motion for Summary
Judgment, or otherwise notify the Court of his intent not to
oppose such Motion, by the designated deadline.
On April 10, 2015, the Court entered an Order directing
Plaintiff to show cause, within fourteen days, why he had failed
to file a response to Defendants' Motion for Summary Judgment,
as instructed by the Court's Notice. Dkt. No. 34.
Significantly, the Court forewarned Plaintiff that a failure to
demonstrate good cause for his nonresponse could result in a
dismissal of his claims. Id. Nevertheless, to date, Plaintiff
has not filed a response to the Court's show cause Order.
DISCUSSION

A district court may dismiss a plaintiff's claims sua
sponte pursuant to either Federal Rule of Civil Procedure 41(b)
("Rule 41(b)") or the court's inherent authority to manage its
docket. Coleman v. St. Lucie Cty. Jail, 433 F. App'x 716, 718
(11th Cir. 2011) (citing Fed. R. Civ. P. 41(b) and Betty K

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ncies, Ltd. v. N/V NONADA, 432 F.3d 1333, 1337 (11th Cir.
2005)) .

In particular, Rule 41(b) allows for the involuntary

dismissal of a plaintiff's claims where he has failed to
prosecute those claims, comply with the Federal Rules of Civil
Procedure or local rules, or follow a court order. Fed. R. Civ.
P. 41(b); see also Coleman, 433 F. App'x at 718; Sanders v.
Barrett, No. 05-12660, 2005 WL 2640979, at

*1 (11th Cir. Oct.

17, 2005) (citing Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir.
1993)); cf. Local R. 41.1(b)

("[T]he assigned Judge may, after

notice to counsel of record, sua sponte . . . dismiss any action
for want of prosecution, with or without prejudice[,]
[based on] willful disobedience or neglect of any order of the
Court." (emphasis omitted)) .

Additionally, a district court's

"power to dismiss is an inherent aspect of its authority to
enforce its orders and ensure prompt disposition of lawsuits."
Brown v. Tallahassee Police Dept, 205 F. App'x 802, 802 (11th
Cir. 2006) (quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th
Cir. 1983)).
A dismissal with prejudice for failure to prosecute is a
"sanction . . . to be utilized only in extreme situations."
Thomas v. Montgomery Cty. Bd. of Educ., 170 F. App'x 623, 625-26
(11th Cir. 2006) (quoting Norewitz v. West of Eng. Ship Owners
Nut. Prot. & Indem. Ass'n (Lux.), 62 F.3d 1356, 1366 (11th Cir.
1995)) . Accordingly, a court may impose such a sanction only
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upon "(1) concluding a clear record of delay or willful contempt
exists; and (2) making an implicit or explicit finding that
lesser sanctions would not suffice." Id. at 626; see also
Taylor v. Spaziano, 251 F. App'x 616, 619 (11th Cir. 2007)
(citing Morewitz, 62 F.3d at 1366). By contrast, a dismissal
without prejudice for failure to prosecute is not an
adjudication on the merits, and, therefore, courts are afforded
greater discretion in dismissing claims in this manner. Taylor,
251 F. App'x at 619; see also Coleman, 433 F. App'x at 719;
Brown, 205 F. App'x at 802-03.
Plaintiff has not engaged in such a "clear pattern of
willful contempt" so as to warrant a dismissal of his claims
with prejudice at this time. Cf. Thomas, 170 F. App'x at 624 &
n.1, 626 (upholding a dismissal with prejudice, where the
plaintiff had engaged in a "clear pattern of willful contempt"
by ignoring four court orders to file an amended complaint and
failing to appear at two mandatory conferences) . Nevertheless,
Plaintiff neglected to respond in any way to Defendants' Motion
for Summary Judgment by the February 8, 2015, deadline, as
required by Local Rule 7.5 and the Court's Notice. See Local R.
7.5 ("Unless these rules or the assigned Judge prescribes
otherwise, each party opposing a motion shall serve and file a
response within fourteen (14) days of service of the motion,
except that in cases of motions for summary judgment the time
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shall be twenty-one (21) days after service of the motion.");
Dkt. No. 33. Further, Plaintiff disregarded the Court's
unequivocal instruction to show cause for his failure to respond
within fourteen days of the April 10, 2015, Order. See Dkt. No.
34. Importantly, Plaintiff failed to make the requisite filings
despite the Court's repeated warnings that such conduct could
result in a dismissal of this case. See Dkt. Nos. 33-34.
Now roughly seven months past the deadline for responding
to Defendants' Motion for Summary Judgment, and almost five
months past the deadline to show cause, Plaintiff still has not
submitted these or any other filings and has not contacted the
Court at any time. Under these circumstances, a dismissal
without prejudice for failure to prosecute is warranted. See,
e.g., Jenkins v. Bedard, No. 2:12-CV-74-FTM-29UAM, 2013 WL
6182091, at *1 (M.D. Fla. Nov. 25, 2013) (action subject to
dismissal for failure to prosecute where pro se plaintiff failed
to respond to defendants' motion for summary judgment and to
court's related show cause order); Mahon v. White, No. CIV.A.
12-0658-KD-C, 2013 WL 3513045, at *1 (S.D. Ala. July 11, 2013)
(same); Torrence v. Picerne Dev., No. 5:10-CV-412 CAR, 2012 WL
689853, at *2 (M.D. Ga. Mar. 2, 2012) (same); of. Pierce v. City
of Miami, 176 F. App'x 12, 15 (11th Cir. 2006) (reversing a
dismissal for failure to prosecute where the plaintiff had not
responded to a motion for summary judgment but had "responded to
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the order to show cause one day after the time period expired,
and explained that he had not received the order until then").'
CONCLUSION
Eased on the foregoing, Plaintiff's Complaint (dkt. no. 11) is hereby DISMISSED without prejudice for failure to
prosecute. Accordingly, the Clerk of Court is DIRECTED to enter
the appropriate judgment of dismissal and to CLOSE this case.

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The Court notes that "where the statute of limitations will bar
future litigation of an action dismissed without prejudice," the
dismissal operates "as if it was with prejudice." Muhammad v.
Muhammad, 561 F. App'x 834, 836 (11th Cir. 2014) (citing Gray v. Fid.
Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981)). While Georgia
recognizes a two-year statute of limitations for personal injury
actions, see O.C.G.A. § 9-3-33, Georgia's renewal statute permits a
plaintiff to refile certain actions outside the limitations period,
see id. § 92-2-61(a). Specifically, the renewal statute provides that
when a plaintiff files a cause of action within the applicable statute
of limitations and later discontinues or dismisses the case, he may
then refile it "either within the original applicable period of
limitations or within six months after the discontinuance or
dismissal, whichever is later." Id. § 9-2-61 (a) . Relevant here is
that "[it is well-established that a dismissal by the trial court for
want of prosecution is deemed a voluntary dismissal for purposes of
O.C.G.A. § 9-2-61(a)," such that the plaintiff may later refile his
claims outside the limitations period in accordance with the renewal
statute. White v. KFC Nat'l Mgmt. Co., 493 S.E.2d 244, 245-46 (Ga.
Ct. App. 1997) (citing Swartzel v. Garner, 387 S.E.2d 359 (Ga. Ct.
App. 1989), Fowler v. Aetna Cas. & Sur. Co., 283 S.E.2d 69 (Ga. Ct.
App. 1981), and Douglas v. Kelley, 158 S.E.2d 441 (Ga. Ct. App.
1967)) (finding that the trial court's dismissal of the plaintiff's
negligence claims without prejudice for failure to prosecute was a
"voluntary dismissal" permitting the plaintiff to refile his claims
after the limitations period expired) . Thus, notwithstanding the
passage of time since the accident giving rise to Plaintiff's tort
claims, Georgia law provides for the refiling of these claims outside
the limitations period following a dismissal for want of prosecution.
Accordingly, this case does not present any statute of limitations
concerns that might impact the prejudicial effect of this ruling.

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The Clerk of Court is further DIRECTED to serve a copy of this
Order upon Plaintiff.

SO ORDERED, this 22ND day of September, 2015.

LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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