SE Property Holdings, LLC v. Green ( 2020 )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION SE PROPERTY HOLDINGS, LLC, ) Plaintiff, VS. Civil Action No. 19-00430-KD-B JEFF GREEN, et al., Defendants. ORDER This action 1s before the Court upon sua sponte review of the docket. On December 3, 2020, Plaintiff SE Property Holdings, LLC and Defendants Jeff Green, Coastal Commercial LLC, Wolf Creek LLC, LBG LLC, and Kirby Northcutt Green filed a joint stipulation of dismissal (doc. 58). Defendant Green and Sons LLC was included as a defendant, but did not sign the joint stipulation. The docket indicates that default was entered as to Green and Sons LLC in September 2019 (doc. 16). Thus, this action remains pending as to Green and Sons LLC. The Court of Appeals for the Eleventh Circuit has held that the “district court may sua sponte dismiss a case under the authority of either Rule 41(b) [involuntary dismissal] or the court’s inherent power to manage its docket.” Johnson v. DuBose, 806 Fed. Appx. 927, 928 n.1 (11th Cir. 2020) (citing Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005) and noting S.D. Ala. Civ. L.R. 41(c)); Link v. Wabash R.R., 370 U.S. 626, 630-31, 82 S. Ct. 1386, 1389 (1962) (Rule 41(b) does not restrict the court’s inherent authority to dismiss an action sua sponte for failure to prosecute). Additionally, this Court’s Civil Local Rule 41(c), captioned “Dismissal for Lack of Diligence”, provides that “[w]henever it appears that the Plaintiff is not diligently prosecuting the action, the Court upon notice may dismiss the action for failure to prosecute, in accordance with applicable law.” S.D. Ala. Civ. L.R. 41(c). Also, to “employ fair procedure, a district court must generally “provide the plaintiff with notice of its intent to dismiss or an opportunity to respond.’” Tazoe v. Airbus $.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011) (citation omitted). Accordingly, Plaintiff SEPH is hereby given notice that this Court intends to dismiss this action without prejudice for failure to prosecute as to Green and Sons LLC, in accordance with S.D. Ala. Civ. L.R. 41(c), Fed. R. Civ. P. 41(b), and its inherent authority to manage its docket. SEPH is given the opportunity by December 18, 2020, to either show cause why this action against Green and Sons LLC should not be dismissed for failure to prosecute or file a notice of dismissal as to Green and Sons LLC pursuant to Fed. R. Civ. P. 41(a)(1)(A)(), which provides for a voluntary dismissal by the Plaintiff without a court order by filing “a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” DONE and ORDERED this the 4th day of December 2020. s/ Kristi K. DuBose KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE