Taylor v. AAA Ambulance Service

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 23 Report and Recommendations and Dismissing Case without Prejudice. Signed by District Judge Halil S. Ozerden on 1/28/2019 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
SKYLA P. TAYLOR

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v.
AAA AMBULANCE SERVICE

PLAINTIFF
Civil No. 1:18cv90-HSO-JCG
DEFENDANT

ORDER ADOPTING MAGISTRATE JUDGE’S [23] REPORT AND
RECOMMENDATION AND DISMISSING CASE WITHOUT PREJUDICE
This matter comes before the Court on the Report and Recommendation [23]
of United States Magistrate Judge John C. Gargiulo, entered in this case on
December 18, 2018. Based upon the Magistrate Judge’s review of the record and
relevant legal authority, he recommended that this case be dismissed without
prejudice pursuant to Federal Rule of Civil Procedure 41(b) for Plaintiff’s failure to
prosecute and to abide by the Court’s Orders. R. & R. [23] at 3. The Court finds
that the Report and Recommendation [23] should adopted in its entirety as the
finding of this Court and that this case should be dismissed without prejudice.
I. BACKGROUND
Plaintiff Skyla P. Taylor (“Plaintiff”) filed a Complaint [1] in this Court on
March 27, 2018, through retained counsel. The Complaint asserted claims against
her former employer, AAA Ambulance Service, for retaliation pursuant to Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§2000e, et seq., and 42 U.S.C. § 1981.
Compl. [1] at 1; Order [14] at 1.
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On July 26, 2018, Plaintiff’s counsel filed a Motion [18] for Leave to
Withdraw, citing a conflict of interest. The Magistrate Judge entered an Order
[19] taking the Motion [18] under advisement and directed counsel to serve Plaintiff
with a copy of the Order. The Magistrate Judge also granted Plaintiff until
September 7, 2018, to either “(1) employ private counsel and have that counsel
enter a written notice of appearance in this case, or (2) notify the Clerk of Court, in
writing, that she will be representing herself in this case.” Order [19] at 1. The
Magistrate Judge cautioned that “[s]hould Plaintiff fail to either retain new counsel
or notify the Clerk of Court that she will be representing herself in this case, the
claims will be subject to dismissal.” Id.

After counsel filed a Certificate of

Service [20] indicating that he had served Plaintiff as directed, the Magistrate
Judge granted counsel’s Motion [18] for Leave to Withdraw. See Aug. 8, 2018, Text
Order.
On September 6, 2018, prospective counsel contacted the Magistrate Judge’s
chambers via e-mail and indicated that he needed additional time to evaluate the
case before deciding whether to represent Plaintiff. See Sept. 6, 2018, Text Order.
The Magistrate Judge extended the time for retaining new counsel or otherwise
notifying the Court until October 10, 2018. See id.
After Plaintiff did neither by this deadline, the Magistrate Judge entered his
first Order [21] to Show Cause on October 16, 2018, and required Plaintiff to show
cause in writing by November 6, 2018, why the case should not be dismissed for
failure to comply with the Court’s Orders. Order [21] at 2. The Magistrate Judge

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warned that “[s]hould plaintiff fail to timely respond or fail to show good
cause for her lack of compliance in this case, this matter may be dismissed
without further notice to Plaintiff.” Id.
Plaintiff filed nothing by the November 6, 2018, deadline, and the Magistrate
Judge entered a Second Order [22] to Show Cause, requiring a response by
December 6, 2018. Plaintiff was again cautioned that her case may be dismissed
without further notice if she failed to respond or show cause. See Order [22] at 2.
After the deadline to respond to the Second Order [22] to Show Cause passed
with no response from Plaintiff, the Magistrate Judge entered a Report and
Recommendation [23] on December 18, 2018, recommending that Plaintiff’s case be
dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b) and
the Court’s inherent authority, due to Plaintiff’s failure to prosecute and obey
Orders of the Court. See R. & R. [23] at 3.
Any objection to the Magistrate Judge’s Report and Recommendation [23]
was due within fourteen (14) days of service. L.U. Civ. R. 72(a)(3). To date,
Plaintiff has not filed any objection to the Magistrate Judge’s Report and
Recommendation [23].
II. DISCUSSION
Where no party has objected to a magistrate judge’s report and
recommendation, the Court need not conduct a de novo review of it.

28 U.S.C. §

636(b)(1) (“a judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings and recommendations to which objection

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is made”). In such cases, the Court applies the “clearly erroneous, abuse of
discretion and contrary to law” standard of review. United States v. Wilson, 864
F.2d 1219, 1221 (5th Cir. 1989).
Having conducted the required review, the Court concludes that the
Magistrate Judge’s findings are not clearly erroneous, nor are they an abuse of
discretion or contrary to law. The Court will adopt the Magistrate Judge’s Report
and Recommendation [23] as the opinion of this Court, and this civil action will be
dismissed without prejudice for Plaintiff’s failure to prosecute and to abide by the
Court’s Orders.
Even under a de novo review, the result would not change. This Court has
the authority to dismiss an action for a plaintiff’s failure to prosecute under Federal
Rule of Civil Procedure 41(b) and under its inherent authority to dismiss the action
sua sponte. See Link v. Wabash Railroad, 370 U.S. 626, 630-31 (1962);
McCullough v Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). The Court must be
able to clear its calendar of cases that remain dormant because of the inaction or
dilatoriness of the parties seeking relief, so as to achieve the orderly and
expeditious disposition of cases.

Such a sanction is necessary in order to prevent

undue delays in the disposition of pending cases and to avoid congestion in the
calendar of the Court. See Link, 370 U.S. at 629-30.
Plaintiff’s inaction represents a clear record of delay or contumacious
conduct, and it is apparent that Plaintiff no longer wishes to pursue this case.
Dismissal is warranted.

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III.

CONCLUSION

IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation [23] of United States Magistrate Judge John C. Gargiulo, entered
in this case on December 18, 2018, is ADOPTED in its entirety as the finding of
this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, this civil action is
DISMISSED WITHOUT PREJUDICE for Plaintiff’s failure to prosecute and to
abide by the Court’s Orders. A separate final judgment will be entered pursuant to
Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 28th day of January, 2019.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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