VINCENT CIRRINCIONE, Plaintiff, v. THE DAVEY TREE EXPERT COMPANY, Defendant Case No: 6:22-cv-1275-PGB-LHP United States District Court, M.D. Florida Filed July 17, 2023 Price, Leslie H., United States Magistrate Judge Report and Recommendation *1 TO THE UNITED STATES DISTRICT COURT: This cause came on for consideration without oral argument on the following motion filed herein: MOTION: DEFENDANT'S MOTION FOR INVOLUNTARY DISMISSAL OF PLAINTIFF'S COMPLAINT (Doc. No. 34) FILED: May 3, 2023 THEREON it is RECOMMENDED that the motion be GRANTED in part and DENIED in part. I. BACKGROUND. Plaintiff Vincent Cirrincione, at the time through counsel, instituted this action against Defendant The Davey Tree Expert Company in state court, alleging unlawful employment retaliation in violation of Florida's Private Whistleblower Act, Fla. Stat. § 448.102(3). Doc. No. 1-5. Defendant removed the matter to this Court on July 20, 2022, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. Doc. No. 1. Defendant thereafter answered the complaint. Doc. No. 8. The matter proceeded in the ordinary course until Plaintiff's counsel was permitted to withdraw on November 1, 2022. Doc. Nos. 20–22. Since that time, Plaintiff has been proceeding pro se. As relevant here, on December 13, 2022, Defendant filed a motion to compel Plaintiff to comply with discovery obligations, including serving answers to interrogatories and responses to requests for production, and cooperation in scheduling Plaintiff's deposition. Doc. No. 25. According to the motion, Defendant had been attempting to obtain responses to its written discovery since September 2022, to no avail, and since Plaintiff has been proceeding pro se, Plaintiff had not responded to numerous attempts to communicate. Id. Plaintiff also did not timely respond to the motion to compel, and the undersigned therefore granted the motion as unopposed on January 19, 2023. Doc. No. 27. The undersigned ordered Plaintiff, on or before February 17, 2023, to do the following: (1) serve on Defendant complete, sworn answers to Defendant's first set of interrogatories; (2) produce all documents in Plaintiff's current possession, custody, or control responsive to Defendant's first request for production of documents; (3) provide Defendant three dates for Plaintiff's deposition; and (4) confer with counsel for Defendant regarding an amount of reasonable fees and expenses to be awarded to Defendant for the filing of the motion to compel. Id. According to Defendant, Plaintiff complied with none of these requirements, despite several attempts by counsel for Defendant to communicate with Plaintiff, communication attempts to which Plaintiff did not respond. Doc. No. 34, at 3. See also Doc. No. 29, at 3–4. On Defendant's motion, a motion to which Plaintiff did not respond, attorney's fees were awarded to Defendant for the filing of the motion to compel. Doc. Nos. 29, 33.[1] Now before the Court is Defendant's Motion for Involuntary Dismissal of Plaintiff's Complaint (Doc. No. 34), which has been referred to the undersigned. Defendant requests involuntary dismissal with prejudice of Plaintiff's complaint because Plaintiff “has not responded to any contact efforts by Defendant's counsel since November 2022 ...; has not abided by any of the Court-ordered deadlines since November 2022; and has not in any way indicated his interest in further pursuing this action....” Id. at 3. Plaintiff has not responded to the motion, and his time for doing so has expired. See Local Rule 3.01(c).[2] Accordingly, the motion is subject to treatment as unopposed. See id. Upon consideration, and for the reasons discussed herein, I will respectfully recommend that the motion be granted in part and the matter be dismissed without prejudice. II. LEGAL STANDARDS. *2 Defendant seeks involuntary dismissal of Plaintiff's complaint with prejudice on two legal bases—Federal Rule of Civil Procedure 37(b)(2)(A) and Federal Rule of Civil Procedure 41(b). Doc. No. 34. Federal Rule of Civil Procedure 37(b)(2)(A) provides: If a party ... fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. “Under Rule 37(b)(2)(A), a district court may dismiss a complaint with prejudice when: (1) a party's failure to comply with a court order is a result of willfulness or bad faith; and (2) the district court finds that lesser sanctions would not suffice.” Lyle v. BASF Chemistry, Inc., 802 F. App'x 479, 482 (11th Cir. 2020) (citing Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993)).[3] 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, a defendant may move to dismiss the action or any claim against it.” “Dismissal under Rule 41(b) is appropriate where there is a clear record of ‘willful’ contempt and an implicit or explicit finding that lesser sanctions would not suffice.” Gratton v. Great Am. Commc'ns, 178 F.3d 1373, 1374 (11th Cir. 1999) (citation omitted). Dismissal of a complaint with prejudice “is considered a sanction of last resort, applicable only in extreme circumstances.” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985) (citing Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)). “Nonetheless, if a party disregards an order despite being warned of the possible consequences, dismissal is generally not an abuse of discretion. These principles apply with equal force to pro se parties.” Zow v. Regions Fin. Corp., 595 F. App'x 887, 889 (11th Cir. 2014) (citing Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)). III. ANALYSIS. From a review of the record, it appears that Plaintiff has abandoned this case. Upon the withdrawal of his counsel, the undersigned cautioned Plaintiff that he would be responsible for representing himself as an individual in this lawsuit and that “failure to comply with the Federal Rules of Civil Procedure, the Local Rules of this Court, or Court Orders may result in sanctions against him, up to and including dismissal of this case.” Doc. No. 22, at 2, 3. Still, Plaintiff failed to timely respond to discovery, failed to timely respond to Defendant's motion to compel, failed to comply with the undersigned's order granting the motion to compel, and failed to respond to the above-styled motion. See Doc. Nos. 25–27, 29, 33.[4] In granting the motion to compel, the undersigned cautioned Plaintiff that failure to comply with that order may subject Plaintiff to sanctions, including a recommendation that the case be dismissed. Doc. No. 27, at 6. Defendant submits that it has attempted to contact Plaintiff on several occasions to no avail, submissions to which Plaintiff offers no response. See Doc. No. 34, at 3. *3 Thus, the undersigned agrees with Defendant that dismissal of this matter is warranted. Fed. R. Civ. P. 37(b)(2)(A); Fed. R. Civ. P. 41(b). However, “to justify dismissal with prejudice as a sanction under Rule 41(b), ‘[t]here must be both a clear record of willful conduct and a finding that lesser sanctions are inadequate.’ ” Brutus v. IRS, 393 F. App'x 682, 684 (11th Cir. 2010) (quoting Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006)). Likewise, under Rule 37(b)(2)(A), to dismiss with prejudice, the Court must find willfulness or bad faith and that lesser sanctions would not suffice. Lyle, 802 F. App'x at 482 (citing Malautea, 987 F.2d at 1542). Although Plaintiff appears to have abandoned this case and has failed to comply with the undersigned's order granting Defendant's motion to compel, it is not evident from the current record that Plaintiff's noncompliance was willful or in bad faith, or that a lesser sanction would not suffice. Accordingly, the undersigned recommends that dismissal without prejudice for lack of prosecution, rather than a dismissal with prejudice, is more appropriate. See, e.g., Willard v. UFP Auburndale, LLC, No. 8:21-cv-1987-CEH-JSS, 2022 WL 5240779, at *2 (M.D. Fla. Oct. 6, 2022) (concluding that dismissal without prejudice, rather than dismissal with prejudice, was appropriate sanction where plaintiff's counsel withdrew, plaintiff proceeded pro se, plaintiff failed to respond to a motion to compel or comply with an order granting same, the plaintiff otherwise failed to prosecute the case, and defense counsel was largely unable to contact plaintiff); Mix v. Quality Res., Inc., No. 8:14-cv-199-T-36MAP, 2015 WL 427524, at *2 (M.D. Fla. Feb. 2, 2015) (concluding dismissal without prejudice for lack of prosecution was more appropriate sanction than dismissal with prejudice where the plaintiff was recently proceeding pro se, defense counsel had been unable to contact the plaintiff, and the plaintiff had not responded to or cooperated in discovery, despite being ordered to do so). See also Hatcher v. Letzry, Inc., No. 6:17-cv-909-Orl-37DCI, 2018 WL 7457413, at *1 & n.1 (M.D. Fla. Sept. 27, 2018), report and recommendation adopted, 2018 WL 7457412 (M.D. Fla. Oct. 12, 2018) (determining that dismissal without prejudice, rather than dismissal with prejudice, was appropriate, where the plaintiff failed to appear at a hearing on her counsel's motion to withdraw, counsel was thereafter permitted to withdraw, and the plaintiff failed to appear at a show cause hearing, finding that the record did not provide a basis for dismissal with prejudice).[5] IV. RECOMMENDATION. *4 For the reasons discussed herein, it is respectfully RECOMMENDED that the Court: 1. GRANT in part Defendant's Motion for Involuntary Dismissal of Plaintiff's Complaint (Doc. No. 34); 2. DISMISS Plaintiff's complaint (Doc. No. 1-5) without prejudice for failure to prosecute and failure to comply with a court order; 3. DENY Defendant's Motion for Involuntary Dismissal of Plaintiff's Complaint (Doc. No. 34) in all other respects; and thereafter 4. DIRECT the Clerk of Court to close the file. NOTICE TO PARTIES A party has fourteen days from the date the Report and Recommendation is served to serve and file written objections to the Report and Recommendation's factual findings and legal conclusions. Failure to serve written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. 11th Cir. R. 3-1. Recommended in Orlando, Florida on July 17, 2023. Footnotes [1] It is not clear from the current record whether Plaintiff has complied with the order awarding attorney's fees, as Defendant filed the above-styled motion prior to the May 12, 2023 deadline for Plaintiff to comply with that Order. Doc. Nos. 33, 34. [2] Defendant certifies that it served Plaintiff with a copy of the motion by certified mail return receipt and regular U.S. Mail. Doc. No. 34, at 7. [3] “Unpublished opinions are not controlling authority and are persuasive only insofar as their legal analysis warrants.” Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir. 2007). [4] The undersigned notes that Plaintiff's counsels’ motions to withdraw were premised on counsels’ inability to communicate with and lack of response from Plaintiff, which resulted in the failure to respond to discovery. Doc. Nos. 20–21. [5] The cases cited by Defendant do not persuade the undersigned otherwise. As it relates to Rule 41(b), Defendant first cites Atkinson v. Volusia County School Board, No. 6:15-cv-619-Orl-40DAB, 2016 WL 4943935, at *2 (M.D. Fla. Sept. 16, 2016), which is factually distinguishable, as there, the Court found dismissal with prejudice appropriate where the plaintiff, who was represented by counsel, continuously missed deadlines, disobeyed court orders, failed to produce court ordered discovery or pay sanctions, and failed to appear at deposition and mediation. There, the court determined that the record reflected a clear pattern of delay or willful misconduct, and that lesser sanctions would be ineffective. Id. at *2. The record here does not reflect the same, as Defendant's motion is premised on Plaintiff's failure to comply with one court order granting a motion to compel. Doc. No. 34. Defendant next cites McClellan v. Lyons, No. 3:15-cv-1094-J-39PDB, 2016 WL 11577629, at *1 (M.D. Fla. Jan. 11, 2016), report and recommendation adopted, 2016 WL 11577630 (M.D. Fla. Feb. 10, 2016), but in McClellan, the court determined that dismissal without prejudice was appropriate because there was no clear record of delay or contumacious conduct, thereby supporting the undersigned's recommendation here. Finally, Defendant cites Sararo v. U.S. Bank National Ass'n, No. 2:11-cv-31-FtM-99DNF, 2013 WL 2352129, at *2 (M.D. Fla. May 29, 2013), but the dismissal in Sararo was for failure to prosecute pursuant to Local Rule 3.10, the case does not address Rule 41, and does not otherwise specify whether the dismissal was with or without prejudice. So, Sararo does not support Defendant's position here. See also Skinner v. Legal Advocacy Ctr. of Cent. Fla., Inc., No. 6:11-cv-1760-Orl-37KRS, 2012 WL 2814348, at *6 n.6 (M.D. Fla. July 10, 2012) (“[C]ourts that have considered whether dismissal pursuant to Local Rule 3.10 is an ‘adjudication on the merits,’ unless the order specifically states otherwise, have found that it is not.” (citations omitted)). Regarding dismissal with prejudice under Rule 37(b)(2)(A), Defendant relies on Crespo v. Sky Chefs, Inc., No. 0223260CIVGARBER, 2003 WL 22466213 (S.D. Fla. Oct. 8, 2003), which is distinguishable. In Crespo, the plaintiff and his counsel failed to comply with discovery obligations and numerous court orders regarding discovery, including failing to appear at a status conference, failing to respond to discovery, deposition failures, violations of discovery orders, and engaging in gamesmanship, demonstrating a “pattern of repeated, willful disobedience.” Id. Those same extreme circumstances are not present here, as Defendant's motion is premised on Plaintiff's failure to comply with one order on a motion to compel. Doc. No. 34. Likewise, in Watkis v. Payless ShoeSource, Inc., 174 F.R.D. 113, 117–18 (M.D. Fla. 1997), the court determined that there was a pattern of “willful, intentional and deliberate behavior that interfered with discovery,” and that the plaintiff engaged in bad faith conduct. Defendant does not point to similar conduct here. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 640–41 (1976) similarly involved a judicial finding of “callous disregard of responsibilities counsel owe to the Court and to their opponents” and “flagrant bad faith.” Finally, Shortz v. City of Tuskegee, Alabama, 352 F. App'x 355, 358 (11th Cir. 2009) also involved more extreme circumstances, including failure to comply with multiple court orders and orders to show cause, demonstrating willfulness or bad faith.