Opinion
CASE NO. 2:06-CV-00312-WKW [wo].
December 6, 2007
MEMORANDUM OPINION AND ORDER
This case is before the court on defendant Keith Kipp's ("Kipp") Motion to Dismiss (Doc. # 29.) On November 27, 2007, this court entered an order reserving ruling on Kipp's motion and ordered the plaintiff to file a second amended complaint on or before December 5, 2007. (Doc. # 34.) The plaintiff did not file an amended complaint with the court. The court finds that Kipp's Motion to Dismiss is due to be granted under Fed.R.Civ.P. 41(b) for plaintiff's failure to comply with court orders.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff Randy Cornelius ("Cornelius") filed a complaint against City of Andalusia ("Andalusia"), Kipp, and Andy Willis ("Willis"), claiming that he was improperly detained by the police in Andalusia.
The court, in an earlier opinion (Doc. # 34), described the factual circumstances underlying the case and will not detail them here. See Cornelius v. City of Andalusia, No. 06-312, 2007 WL 4224036 (M.D. Ala. Nov. 28, 2007).
On April 6, 2006, Cornelius filed his original complaint. On April 28, 2006, Kipp filed a motion for a more definite statement (Doc. # 4), claiming the complaint was unclear as to whether he was sued in an individual capacity, official capacity, or both and requesting more information about the relationship between Willis and Kipp. On April 29, 2006, Andalusia filed a motion to strike (Doc. # 6) because the complaint included fictitious party pleading and because Cornelius sought punitive damages. On May 2, 2006, this court entered a show cause order (Doc. # 8) directing Cornelius to explain why the pending motions should not be granted. Cornelius never responded to this motion, and the court granted both motions. (Doc. # 11.)
On July 13, 2006, Cornelius filed his amended complaint (Doc. # 16) with the allegations set forth above. In the amended complaint, Cornelius removed the fictitious party pleading and punitive damages claims. Defendants Andalusia and Kipp each filed a motion to dismiss the amended complaint. (Docs. # 19 # 25.) Cornelius filed a response to Kipp's motion to dismiss (Doc. # 29) but not to Andalusia's. On November 28, 2007, the court entered an order (Doc. # 34): (1) granting in part and denying in part Andalusia's motion to dismiss and (2) reserving ruling on Kipp's motion to dismiss. The court ordered Cornelius to file a second amended complaint that complied with the court's orders on or before December 5, 2007 and warned Cornelius that it would dismiss his complaint against Kipp if he did not comply. Cornelius has not filed an amended complaint.
II. DISCUSSION
A court can dismiss an action under Federal Rule of Civil Procedure 41(b) "[f]or failure of the plaintiff . . . to comply with . . . any order of court." Fed.R.Civ.P. 41(b). This sanction may be imposed sua sponte. See, e.g., Brown v. Tallahassee Police Dep't, 205 Fed. Appx. 802, 802 (11th Cir. 2006).
Dismissal under Rule 41(b) is appropriate when "there is a clear record of delay or willful contempt and a finding that lesser sanctions would not suffice." Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). In Williams, the court dismissed a complaint with prejudice because it found there was a record of willful contempt and that lesser sanctions would not suffice when: (1) the plaintiff had failed to respond to a motion for a more definite statement, (2) failed to file an amended complaint on time, (3) eventually filed an almost identical amended complaint, and (4) failed to defend a motion. The court had warned the plaintiff on two previous occasions that his complaint could be dismissed. Id.
In this case dismissal is appropriate because Cornelius has a clear record of delay and a lesser sanction would not suffice. First, Cornelius failed to comply with the court's order that he file a second amended complaint on or before December 5, 2007. Cornelius never responded to the court's show cause order (Doc. # 8) regarding Kipp's motion for a more definite statement or to Andalusia's motion to dismiss (Doc. # 19). He failed to respond to the court's order for a more definite statement (Doc. # 11) by not including information regarding the relationship between Willis and Kipp in his first amended complaint. While Cornelius did respond to Kipp's motion to dismiss (Doc. # 25), his response did not address the issues before the court (Doc. # 31). Cornelius discussed why Kipp was not entitled to qualified immunity and cited the appellate standard of review for a district court's summary judgment decision regarding qualified immunity, but he failed to address the issues of whether the complaint met the heightened pleading requirement at the motion to dismiss stage and whether it should be dismissed for failure to comply with a court order. When the court ordered Cornelius to file a second amended complaint, it warned him that his claims against Kipp could be dismissed for his failure to comply with the court's orders. Because Cornelius has consistently failed to comply with the court's orders, the court finds that dismissal is appropriate and a lesser sanction would not suffice.
III. CONCLUSION
Accordingly, it is ORDERED that:
1. Kipp's motion to dismiss (Doc. # 25) is granted.
2. Cornelius's claims against Kipp are DISMISSED without prejudice.
3. Kipp is terminated as a party. Defendants City of Andalusia and Andy Willis remain as parties.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4 Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). 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(b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. 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