Opinion
2:24-cv-287-ECM-JTA (WO)
11-07-2024
TOMMY KENDRICK WILLIAMS, Plaintiff, v. LIEUTENANT TRACY REESE and SHERIFF TYRONE SMITH, Defendants.
ORDER
JERUSHA T. ADAMS UNITED STATES MAGISTRATE JUDGE
Before the court is Defendant Sheriff Tyrone Smith's Motion to Set Aside Clerk's Entry of Default and Rule(6)(b)(1)(B) Motion for Leave to Accept Defendant's Late-Fi[l]ed Motion to Dismiss and Memorandum Brief. (Doc. No. 20.) Plaintiff does not oppose the motion. (Doc. No. 23.) Also before the court is Defendant Tracy Reese's Motion to Dismiss for Failure to Prosecute and Failure to Serve Defendant Pursuant to Rule 4(m). (Doc. No. 25.)
Upon a showing of good cause and excusable neglect in accordance with Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure, and upon consideration of Plaintiff's representation that he does not oppose Defendant Smith's motion (Doc. No. 23) because he wishes for the case to proceed on the merits, it is ORDERED as follows:
1. Defendant Smith's motion to set aside entry of default (Doc. No. 20) is GRANTED.
2. Defendant Smith's motion to deem his motion to dismiss and accompanying brief timely filed (Doc. No. 20) is GRANTED.
3. The motion to dismiss (Doc. No. 12) and accompanying brief (Doc. No. 13) are DEEMED timely filed.
4. On or before November 25, 2024, Plaintiff shall show causein writing as to why the motion to dismiss filed by Defendants Sheriff Tyrone Smith and Lieutenant Tracy Reese (Doc. No. 12) should not be granted. Defendants shall file a reply not later than December 2, 2024. Upon the filing of the reply brief, the motion will be deemed under submission and no further briefs will be permitted absent leave of court.
This is Plaintiff's second opportunity to show cause why the Motion to Dismiss and Opposition to Motion for Entry of Default filed by Defendants Sheriff Tyrone Smith and Lieutenant Tracy Reese (Doc. No. 12) should not be granted. (See Doc. No. 21, August 15, 2024 Order.) Plaintiff did not comply with the earlier order (Doc. No. 21) to show cause why the motion to dismiss (Doc. No. 12) should not be granted. Because the court is cognizant of Plaintiff's pro se status and is persuaded by Plaintiff's statement in his nonopposition to Defendant Smith's motion that he wishes the case to proceed on the merits, the court will allow Plaintiff another opportunity to respond to the motion to dismiss (Doc. No. 12) as to both Defendant Smith and Defendant Reese. See Sullivan v. City of Dadeville, No. 3:22-CV-653-ECM-JTA, 2024 WL 2965586, at *2 (M.D. Ala. June 12, 2024) (denying a motion to strike a pro se response brief that failed to comply with the instructions in a show-cause order because of the court's determination to “observ[e] ... the judicial preference for deciding cases on their merits where possible.”). “Plaintiff is WARNED that, in the future, he shall scrupulously abide by the court's orders.” Id. (emphasis in original). “[T]hough he is pro se, [a litigant] is required to comply with court orders and the Federal Rules of Civil Procedure.” Municipality of Dothan v. Hammond, No. 1:24-CV-289-ECM-JTA, 2024 WL 2378870, at *1 n.1 (M.D. Ala. May 22, 2024) (citing Maus v. Ennis, 513 Fed.Appx. 872, 878 (11th Cir. 2013)).
Nothing in this Order shall be construed as a ruling on Defendant Reese's Motion to Dismiss for Failure to Prosecute and Failure to Serve Defendant Pursuant to Rule 4(m). (Doc. No. 25.
5. Plaintiff is specifically ADVISED to address the issues raised by Defendants in the motion to dismiss (Doc. No. 12) and state why this case should not be dismissed. Plaintiff is CAUTIONED that, should he fail to show cause why the defendants' motion should not be granted or fail to comply with this Order, the Magistrate Judge will recommend that his complaint be dismissed.
Further, upon consideration of Defendant Tracy Reese's Motion to Dismiss for Failure to Prosecute and Failure to Serve Defendant Pursuant to Rule 4(m) (Doc. No. 25), and for good cause, it is ORDERED as follows:
1. On or before November 14, 2024, Defendant Tracy Reese shall file a supplemental brief regarding the motion (Doc. No. 25), in which he shall specifically address why his motion is proper in light of Rules 12(g)(2) and 12(h)(1) of the Federal Rules of Civil Procedure.
2. On or before December 5, 2024, Plaintiff shall show cause why the motion to dismiss (Doc. No. 25) should not be granted. Defendants shall file a reply not later than December 12, 2024. Upon the filing of the reply brief, the motion will be deemed under submission and no further briefs will be permitted absent leave of court.
3. Plaintiff is specifically ADVISED to address the issues raised by Defendant in the motion to dismiss (Doc. No. 25) and supplemental brief, and Plaintiff shall state why this case should not be dismissed. Plaintiff is CAUTIONED that, should he fail to show cause why the defendants' motion (Doc. No. 25) should not be granted or fail to comply with this Order, the Magistrate Judge will recommend that his complaint be dismissed.
Finally, to ensure the accuracy of the court's records, on or before November 14, 2024, Defendant Reese shall file a notice as to the correct spelling of his first and last name.
At various points in the record, Defendant Reese's counsel have spelled his first name as both “Tracy” and “Tracey” and his last name as both “Reese” and “Reece.” (See, e.g., Docs. No. 12, 25.