Myers v. Kinney et al

Filing 25

ORDER denying as moot 10 , 11 , 18 , 20 , and 22 Motions to Dismiss. The Clerk of Court is directed to change the name of Defendants "David Alridge" to "David Aldridge and "Gilbert, Harrell, Summerford & Martin, P.C.," to "Gilbert, Harrell, Sumerford & Martin, P.C.," upon the docket and record of this case. Defendants Kinney, Stethan, and Stein are Dismissed without prejudice for Plaintiff's failure to timely serve the Complaint. Additionally, the Court Dismisses without prejudice all claims against Defendants Aldridge, Ameris Bank, GHSM, McCorvey, and Smith for failure to prosecute. Plaintiff is directed to notify the Court within fourteen days of the date of this Order as to whether he intends to pursue his claims against Defendant Turner. Signed by Chief Judge Lisa G. Wood on 5/12/2015. (csr)

ttritt Court
In the frhutteb tate
for the 6outbern Mi.5trict of Ocorgia
&untuitk JBiUiion
MARCELLE GORDON MYERS,
Plaintiff,
vs.
P.C. STEPHEN V. KINNEY, DAVID
ALRIDGE, CHARLES C. SMITH, JR.,
AMERIS BANK, JOY LYNN TURNER,
Clerk Of Superior Court Of Camden County;
MICHELLE MCCORVEY, SCARLETT G.
STETHAN, JAMES EMORY STEIN, and
GILBERT HARRELL, Harrell, Summerford
& Martin Attys.;
Defendants.

*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*

2:1 4-CV-00067-LGW

ORDER

Plaintiff, proceeding pro

Se,

filed this action against

several Defendants: Stephen V. Kinney, P.C. ("Kinney"); David
Aldridge ("Aldridge")'; Charles C. Smith, Jr. ("Smith"); Gilbert,
Harrell, Sumerford & Martin, P.C. ("GHSM") 2 ; Ameris Bank; Joy

1

This Defendant was docketed as "David Airidge," but his filings
reflect the name "David Aldridge." See, e.g., Dkt. No. 11. The Clerk
of Court is directed to change the name of said Defendant to "David
Aldridge" upon the docket and record of this case.
2

This Defendant was docketed as "Gilbert, Harrell, Surnmerford &
Martin, P.C.," but its correct name is "Gilbert, Harrell, Surnerford &
Martin, P.C." The Clerk of Court is directed to change the name of
AO 72A
(Rev. 8/82)

Lynn Turner, Clerk of Superior Court of Camden County
("Turner"); Michelle McCorvey ("McCorvey"); Scarlett G. Stethan
("Stethan"); and James Emory Stein ("Stein"). Though this case
has been pending for over a year, Plaintiff has failed to serve
some Defendants and has not responded to other Defendants'
Motions to Dismiss. The Court has repeatedly warned Plaintiff
that his failure to pursue his claims against these Defendants
will result in dismissal of those claims. Plaintiff has failed
to heed those warnings.
Consequently, and for reasons set forth more fully below,
Plaintiff's claims against Defendants Kinney, Stethan, and Stein
are DISMISSED WITHOUT PREJUDICE for Plaintiff's failure to
timely serve the Complaint. Additionally, the Court DISMISSES
WITHOUT PREJUDICE all claims against Defendants Aldridge, Ameris
Bank, GHSM, McCorvey, and Smith for Plaintiff's failure to

prosecute. These Defendants' Motions to Dismiss the Complaint
(Dkt. Nos. 10-11) as well as all Defendants' Motions to Dismiss
the Amended Complaint (Dkt. Nos. 18, 20, 22) are DENIED AS MOOT.
Additionally, the Court provides direction to Plaintiff
regarding his only remaining claims, those asserted against
Defendant Turner, which Plaintiff is urged to follow.

said Defendant to "Gilbert, Harrell, Sumerford & Martin, P.C." upon
the docket and record of this case.
AO 72A
(Rev. 8/82)

I

2

BACKGROUND

Plaintiff filed this action on May 5, 2014. Dkt. No. 1.
He originally moved to proceed in forma pauperis. Dkt. No. 3.
The Court denied that Motion and allowed Plaintiff twentyone (21) days to pay the filing fee. Dkt. No. 4. After he
failed to meet that deadline, the Court dismissed his action.
Dkt. No. 6. However, the Court later reopened the case after
Plaintiff belatedly submitted the filing fee. Dkt. No. 7. The
Court issued Plaintiff summons for all Defendants on October 27,
2014.

Dkt. No. 8.
Defendants Smith and GFISM filed a consolidated Motion to

Dismiss Plaintiff's Complaint on November 17, 2014. Dkt.
No. 10. On that same date, Defendants Aldridge, P3meris Bank,
and McCorvey also moved to dismiss Plaintiff's Complaint. Dkt.
No. ii.

On December 11, 2014, the Court ordered Plaintiff to

file any objections to these Motions to Dismiss or to otherwise
inform the Court of his decision not to object to the Motions
within twenty-one (21) days. Dkt. No. 15. The Court made clear
that should Plaintiff fail to respond, "the Court will determine
that there is no opposition to the motions." Id. at p. 2
These Defendants also subsequently filed Motions to Dismiss
Plaintiff's proposed Amended Complaint. Dkt. Nos. 18, 20. Defendant
Turner also filed a Motion to Dismiss as to the Amended Complaint,
after having filed an Answer to the original Complaint. Dkt. No. 22.
However, the Court later denied Plaintiff leave to file his Amended
Complaint. Dkt. No. 24. Consequently, the Defendants' Motions to
Dismiss the amended Complaint (Dkt. Nos. 18, 20, 22) are DENIED AS
MOOT.
AO 72A

(Rev. 8182)

3

(citing Local Rule 7.5). In the months since that Order was
issued, Plaintiff has not filed any response to the Motions to
Dismiss.
Additionally, on January 15, 2014, the Court ordered
Plaintiff to show cause why service has not been made upon
Defendants Kinney, Stethan, and Stein. Dkt. No. 21. The Court
explained that Federal Rule of Civil Procedure 4(m) required
Plaintiff to serve these Defendants within 120 days of the
filing of his Complaint. Id. The Order advised Plaintiff that
his failure to establish good cause "will result in the
dismissal of his claims against these Defendants, without
prejudice." Id. Plaintiff has not responded to that Order and
has still not served Defendants Kinney, Stethan, and Stein.
DISCUSSION

As laid out above, despite the fact that this action has
been pending for over a year, Plaintiff has failed to serve
Defendants Kinney, Stethan, and Stein. Furthermore, Plaintiff
has entirely disregarded the Court's Order to show cause why he
failed to serve these Defendants within 120 days. Federal Rule
of Civil Procedure 4(m) provides,
If a defendant is not served within 120 days after the
complaint is filed, the court—on motion or on its own
after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time. But if the
plaintiff shows good cause for the failure, the court

AU 72A
(Rev. 8182)

4

must extend the time for service for an appropriate
period.
Fed. R. Civ. P. 4 (m) . With the Court having provided notice to
Plaintiff and with Plaintiff not providing any cause for his
failure to serve Defendants Kinney, Stethan, and Stein, the
Court must DISMISS Plaintiff's claims against these Defendants.
In addition to providing for dismissal for failure to
serve, the Federal Rules of Civil Procedure also authorize the
Court to dismiss claims for failure to prosecute. Specifically,
Rule 41(b) "authorizes a district court to dismiss a complaint
for failure to prosecute or failure to comply with a court order
or the federal rules." Gratton v. Great Am. Commc'ns, 178 F.3d
1373, 1374 (11th Cir. 1999). Dismissal under Rule 41(b) is
warranted "where there is a clear record of 'willful' contempt
and an implicit or explicit finding that lesser sanctions would
not suffice." Id.
Furthermore, this Court possesses inherent power to
sanction errant and dilatory litigants. See Martin v. Automobili
Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335 (11th Cir.
2002) ("Courts have the inherent authority to control the
proceedings before them, which includes the authority to impose
'reasonable and appropriate' sanctions."). These inherent
powers include the power to dismiss an action for failure to
prosecute. See In re Mroz, 65 F.3d 1567, 1575 n.9 (11th Cir.

AO 72A
(Rev. 8/82)

1

5

1995); Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.
1985) ("The court's power to dismiss is an inherent aspect of its
authority to enforce its orders and insure prompt disposition of
lawsuits."). "The decision to dismiss for want of prosecution
lies within the trial court's discretion and can be reversed
only for an abuse of discretion." McKelvey v. AT & T Techs.
Inc., 789 F.2d 1518, 1520 (11th Cir. 1986).
Notwithstanding the availability of such a sanction,
dismissal of an action for failure to prosecute should only be
employed when lesser sanctions would be inappropriate, and "only
in the face of a clear record of delay or contumacious conduct
by the plaintiff." Id. (quoting Martin-Trigona v. Morris, 627
F.2d 680, 682 (5th Cir. 1980)). Contumacious conduct warranting
dismissal for failure to prosecute includes "protracted footdragging," "defiance of court orders," "ignoring warnings," and
"wasteful expenditure of the court's time." Chamorro v. Puerto
Rican Cars, Inc., 304 F.3d 1, 4-5 (1st Cir. 2002). Pertinent to
the case at hand, the Court may dismiss a case for failure to
prosecute when a plaintiff fails to respond to motions and Court
orders. See Vega-Encarnacion v. Babilonia, 344 F.3d 37, 40
(1st Cir. 2003) (recognizing that failure to respond to motion
renders party susceptible to involuntary dismissal for failure
to prosecute); Jones v. Graham, 709 F.2d 1457, 1462 (11th Cir.
1983) (affirming dismissal for failure to prosecute where
AO 72A
(Rev.
(Rev. 8/82)

I

6

plaintiff disregarded court orders directing him to respond
within a certain time).
Under the circumstances presented in this case, the Court
finds that the only appropriate sanction is DISMISSAL WITHOUT
PREJUDICE of Plaintiff's claims against Defendants Aldridge,

Prneris Bank, GHSM, McCorvey, and Smith. Plaintiff has failed to
oppose these Defendants' Motions to Dismiss despite their having
been filed months ago. Moreover, the Court directly instructed
Plaintiff to respond to these Motions and warned him that the
Motions would be deemed unopposed if he failed to do so.
Additionally, it does not appear that Plaintiff has taken any
action to prosecute his claims against these Defendants.
CONCLUSION

For the reasons set forth above, the Court DISMISSES
WITHOUT PREJUDICE Plaintiff's claims against Defendants Kinney,

Stethan, and Stein as well as his claims against Defendants
Aldridge, Ameris Bank, GHSM, McCorvey, and Smith.
Plaintiff's only remaining claims are those against
Defendant Turner. As noted above, Defendant Turner filed an
Answer to Plaintiff's Original Complaint and filed a Motion to
Dismiss Plaintiff's Amended Complaint. Dkt. Nos. 9, 22.
Turner's Motion to Dismiss was mooted by the Court's Order
denying Plaintiff leave to amend his Complaint. Dkt. No. 24.
However, it does not appear that Plaintiff has taken any action
AO 72A
(Rev. 8182)

7

to pursue his claims against Defendant Turner. Accordingly,
Plaintiff is DIRECTED to notify the Court within FOURTEEN (14)
DAYS of the date of this Order as to whether he intends to

pursue his claims against Defendant Turner. If Plaintiff fails
to timely respond, the Court will presume that he does not
intend to pursue his claims against Defendant Turner, and those
claims will be dismissed for failure to prosecute.
SO ORDERED,

this

o f /

L SA PODBEY WOOD, CHIEF JUDGE
U IT D STATES DISTRICT COURT
SO HERN DISTRICT OF GEORGIA

AO 72A
(Rev. 8182)

, 2015.