Simplis et al v. JPMorgan Chase Bank et al

Filing 34

ORDER DISMISSING CASE WITHOUT PREJUDICE for Plaintiffs failure to prosecute, failure to follow this Courts Orders, and failure to timely serve the Complaint. The Court DIRECTS the Clerk of Court to CLOSE this case. Signed by District Judge R. Stan Baker on 1/15/19. (jrb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
FILED
Scott L. Poff, Clerk
United States District Court

FRAIN SIMPLIS; and LASHONDRA
SIMPLIS,

By jburrell at 10:05 am, Jan 15, 2019

Plaintiff,

CIVIL ACTION NO.: 4:17-cv-183

v.
TRANSLAND FINANCIAL SERVICES;
WASHINGTON MUTUAL BANK; DOES 1–
20; and ALL PERSONS CLAIMING ANY
INTEREST IN REAL PROPERTY
LOCATED AT 864 STONEBRIDGE BLVD.,
SAVANNAH, GA, 31405, a/k/a LOT 907,
Defendants.

ORDER
This matter comes before the Court after Plaintiffs’ failure to properly serve their
Complaint and their failure to comply with or in any way respond to the Court’s September 25,
2018 Order. (Doc. 33.) The Court DISMISSES this action WITHOUT PREJUDICE for
Plaintiff’s failure to prosecute, failure to follow this Court’s Orders, and failure to timely serve
the Complaint. The Court DIRECTS the Clerk of Court to CLOSE this case.
BACKGROUND
The background of this case is laid out in detail in the Court’s September 25, 2018 Order.
(Id.) Put succinctly, after filing this action approximately eighteen months ago, Plaintiffs only
properly served one Defendant, JPMorgan Chase Bank. The Court since dismissed JPMorgan
Chase Bank from this action.

(Doc. 25.)

In that Order of dismissal and in the Court’s

September 25, 2018 Order, the Court ordered Plaintiffs to show cause for their failure to timely
serve the other Defendants. (Id. at p. 11 n. 4; Doc. 33, p. 3.) Though Plaintiffs made some

response to the Court’s Order of dismissal, they have made no response to the September 25,
2018 Order or taken any other action in this case since that 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. Link v. Wabash R.R. Co., 370 U.S. 626 (1962); 1 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 Agencies, Ltd. v. M/V
MONADA, 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 Dep’t, 205 F. App’x 802,
802 (11th Cir. 2006) (quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)).
It is true that dismissal with prejudice for failure to prosecute is a “sanction . . . to be
utilized only in extreme situations” and requires that a court “(1) conclud[e] a clear record of
delay or willful contempt exists; and (2) mak[e] an implicit or explicit finding that lesser
sanctions would not suffice.” Thomas v. Montgomery Cty. Bd. of Educ., 170 F. App’x 623,

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In Wabash, the Court held that a trial court may dismiss an action for failure to prosecute “even without
affording notice of its intention to do so.” 370 U.S. at 633. Nonetheless, the Court provided Plaintiffs
with notice that their failure to show cause would result in dismissal of their Complaint. (Doc. 33, p. 3.)
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625–26 (11th Cir. 2006) (quoting Morewitz v. West of Eng. Ship Owners Mut. Prot. & Indem.
Ass’n (Lux.), 62 F.3d 1356, 1366 (11th Cir. 1995)); see also Taylor v. Spaziano, 251 F. App’x
616, 619 (11th Cir. 2007) (citing Morewitz, 62 F.3d at 1366). By contrast, 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.
While the Court exercises its discretion to dismiss cases with caution, dismissal of this
action without prejudice is warranted. See Coleman, 433 F. App’x at 719 (upholding dismissal
without prejudice for failure to prosecute Section 1983 complaint, where plaintiff did not
respond to court order to supply defendant’s current address for purpose of service); Taylor, 251
F. App’x at 620–21 (upholding dismissal without prejudice for failure to prosecute, because
plaintiffs insisted on going forward with deficient amended complaint rather than complying, or
seeking an extension of time to comply, with court’s order to file second amended complaint);
Brown, 205 F. App’x at 802–03 (upholding dismissal without prejudice for failure to prosecute
Section 1983 claims, where plaintiff failed to follow court order to file amended complaint and
court had informed plaintiff that noncompliance could lead to dismissal).
Moreover, Federal Rule of Civil Procedure Rule 4(m) mandates that the Court dismiss a
complaint when a plaintiff fails to effect service within 90 days of the filing of the complaint. A
plaintiff may request an extension of time for service of process upon the showing of good cause.
Fed. R. Civ. P. 4(m). A plaintiff has the burden of demonstrating the existence of “good cause”
justifying service outside of the deadline. Sanders v. Fluor Daniel, Inc., 151 F.R.D. 138, 139
(M.D. Fla. 1993). “To demonstrate good cause, the plaintiff must offer evidence that she (1) has
proceeded in good faith; (2) has a reasonable basis for noncompliance and (3) the basis for the
delay was more than simple inadvertence or mistake.” Durgin v. Mon, 659 F. Supp. 2d 1240,

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1258 (S.D. Fla. 2009), aff’d, 415 F. App’x 161 (11th Cir. 2011) (per curiam) (citing Sanders, 151
F.R.D at 139; Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991); Horenkamp v. Van Winkle &
Co., 402 F.3d 1129, 1130–31 (11th Cir. 2005)).
This Court has twice issued Orders directing Plaintiff to show cause for their failure to
timely serve the remaining Defendants. Despite the Court’s specific instructions, Plaintiffs have
failed to show cause, much less taken any effort to comply with their service obligations.
Accordingly, the Court DISMISSES without prejudice Plaintiff’s Complaint for failure to
prosecute, failure to follow this Court’s Orders, and failure to timely serve their Complaint.
CONCLUSION
For the foregoing reasons, the Court DISMISSES without prejudice Plaintiff’s
Complaint and DIRECTS the Clerk of Court to CLOSE this case.
SO ORDERED, this 15th day of January, 2019.

R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

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