Opinion
Civil Action 5:22-cv-355 (MTT)
03-03-2023
WILLIE B. MITCHELL, Plaintiff, v. MICHAEL P. KELLY, et al., Defendants.
ORDER
MARC T. TREADWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
Plaintiff Willie Mitchell filed this lawsuit against defendants Michael Kelly and Secretary of Defense Lloyd Austin on September 30, 2022. Doc. 1. Because ninety days passed and Mitchell had not attempted to serve the defendants, the Court ordered Mitchell to show cause by February 6, 2023 why his claims should not be dismissed for failure to serve. Doc. 3. As of the date of this Order, Mitchell has neither responded to the Court's show cause order, nor filed any documents indicating his attempt to serve the defendants.
Mitchell's summons to defendant Lloyd Austin did not comply with Federal Rule of Civil Procedure 4(i). Doc. 2.
Pursuant to Federal Rule of Civil Procedure 41(b), “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order,” his claims may be dismissed.
Though Rule 41(b) by its terms applies only to dismissal on a defendant's motion, the Eleventh Circuit has “elide[d] th[e] neat distinction” between a district court's dismissal pursuant to Rule 41(b) and dismissal pursuant to its inherent authority in many of its decisions. Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005); see also World Thrust Films, Inc. v. Int'l Family Entm't, Inc., 41 F.3d 1454, 1456 (11th Cir. 1995) (citing Rule 41(b) as source of the district court's authority to dismiss actions). Regardless of the source of authority, it is clear the Court may dismiss an action as a sanction for failure to comply with a court order.
Moreover, “‘the authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an inherent power, governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs.'” Betty K Agencies, Ltd., 432 F.3d at 1337 (internal alterations omitted) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). Because Mitchell has failed to prosecute his case and comply with the Court's order, dismissal is appropriate. The Court has considered that the dismissal of Mitchell's complaint may effectively be with prejudice, but still concludes dismissal is appropriate and no circumstances warrant additional time to allow for Mitchell to serve the defendants.
Accordingly, Mitchell's complaint (Doc. 1) is DISMISSED.
SO ORDERED.