Susan Levy v. NCL (Bahamas), LTD.
686 F. App'x 667
| 11th Cir. | 2017Background
- Susan Levy, pro se, sued Norwegian (NCL) in S.D. Fla. for cruise-ship injuries in Dec 2015; district court ordered service returns 14 days before the Mar 4 planning conference (Feb 19).
- On Jan 13 the court issued an order to show cause why service had not been perfected, requiring a response by Jan 20; Levy did not respond and the court dismissed the case on Jan 22 without stating whether the dismissal was with or without prejudice.
- Levy moved under Fed. R. Civ. P. 60(b)(1), asserting she had sought a waiver of service, received a waiver from Norwegian, never received the show-cause order (clerk or postal error), lacked CM/ECF access, and reasonably expected the Feb 19 service deadline.
- The district court denied the first Rule 60(b) motion without prejudice, doubting Levy’s account and ordering her to obtain CM/ECF access and refile by Feb 19; Levy refiled and added that mail from Florida to New York takes six days and noted statute-of-limitations concerns.
- The district court denied the second motion, treated the dismissal as without prejudice and suggested Levy could simply refile in S.D.N.Y.; Levy appealed the denial of Rule 60(b) relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for failure to comply with show-cause order was proper | Levy argued she did not receive the order, had taken steps to serve (waiver), and lacked CM/ECF access; any lapse was excusable neglect | Norwegian relied on district court’s dismissal for failure to respond to the show-cause order | Court did not decide dismissal abuse; remand focused on Rule 60(b) denial because remedy was improperly denied |
| Whether denial of Rule 60(b) relief was an abuse of discretion | Levy contended she was entitled to relief due to mistake/neglect, evidence of active prosecution (service waiver), and that dismissal effectively barred refiling by SOL | Norwegian and district court treated dismissal as without prejudice and procedurally proper to require refiling | Court held denial of Rule 60(b) relief was an abuse of discretion and vacated the denials and remanded |
| Whether dismissal operated as with prejudice (effectively) | Levy argued refiling would be barred by statute of limitations, so dismissal was effectively with prejudice | District court stated dismissal was without prejudice and advised refiling in S.D.N.Y. | Court found the dismissal operated as with prejudice (Rule 41(b) and SOL effect), so stronger justification required |
| Whether dismissal with prejudice was justified by willful delay or misconduct | Levy argued any failure was at most negligence and she had legitimate explanations; she obtained waiver before deadline | District court implied sanctions appropriate for noncompliance with orders | Court held dismissal with prejudice was not justified: no clear record of willful delay and lesser sanctions not considered; negligence insufficient for such a sanction |
Key Cases Cited
- McKelvey v. AT&T Techs., Inc., 789 F.2d 1518 (11th Cir.) (dismissal for want of prosecution reviewed for abuse of discretion)
- Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333 (11th Cir.) (court may sua sponte dismiss for failure to prosecute)
- Moon v. Newsome, 863 F.2d 835 (11th Cir.) (dismissal for disregard of court order generally within discretion)
- Justice v. United States, 6 F.3d 1474 (11th Cir.) (dismissal that prevents refiling because of SOL operates as dismissal with prejudice)
- Zocaras v. Castro, 465 F.3d 479 (11th Cir.) (dismissal with prejudice requires clear record of delay or willful misconduct and that lesser sanctions are inadequate)
- Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284 (11th Cir.) (abuse of discretion standard for Rule 60(b) review)
- Cheney v. Anchor Glass Container Corp., 71 F.3d 848 (11th Cir.) (Rule 60(b) denial reviewed for abuse of discretion)