OnPower, Inc. v. United Power Line Contractors, LLC
2:15-cv-00796
M.D. Fla.Jun 9, 2016Background
- Plaintiffs OnPower, Inc. and Thomas Esch sued to enforce a settlement agreement and attempted service on defendants United Power Line Contractors, LLC and Ryan Farris.
- Clerk’s default was entered as to Ryan Farris but denied as to United Power Line Contractors, LLC because proper service had not been shown.
- The Court entered an Order to Show Cause directing Plaintiffs to explain within 14 days why claims against United Power Line Contractors, LLC should not be dismissed for failure to prosecute; Plaintiffs did not timely respond.
- Plaintiffs subsequently filed other submissions but never cured the failure to respond to the Order to Show Cause or otherwise demonstrated intent to proceed against the LLC.
- The Magistrate Judge found the delay willful and recommended dismissal of the action as to United Power Line Contractors, LLC for failure to prosecute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claims against United Power Line Contractors, LLC should be dismissed for failure to prosecute | Plaintiffs had attempted service and proceeded in the case (implicitly arguing case should continue) | Plaintiffs failed to show proper service or respond to the Court's Order to Show Cause | Recommended dismissal for failure to prosecute due to willful delay |
| Whether dismissal is appropriate given Eleventh Circuit standards | Plaintiffs did not present argument rebutting dismissal standard | Court applied Eleventh Circuit precedent requiring willful delay or contumacious conduct for dismissal | Dismissal is appropriate here as the record shows willful delay |
Key Cases Cited
- McKelvey v. AT & T Techs., Inc., 789 F.2d 1518 (11th Cir.) (dismissal for want of prosecution is discretionary and extreme sanction)
- Martin-Trigona v. Morris, 627 F.2d 680 (5th Cir.) (dismissal only for clear record of delay or contumacious conduct)
- Searock v. Stripling, 736 F.2d 650 (11th Cir.) (simple negligence insufficient to warrant dismissal)
- E.E.O.C. v. Troy State University, 693 F.2d 1353 (11th Cir.) (dismissal proper only when less drastic sanctions unavailable)
- Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. en banc) (Eleventh Circuit adopts pre-1981 Fifth Circuit decisions as binding precedent)