Denish v. Foremost Insurance Company ( 2023 )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION MELINDA DENISH, ) ) Plaintiff, ) ) vs. ) Civil Action No. 2:22-00076-KD-MU ) FOREMOST INSURANCE COMPANY, ) ) Defendant. ) ORDER This action breach of contract and bad faith action is now before the Court upon sua sponte review of the docket. On June 15, 2023, Foremost Insurance Company filed a motion for summary judgment (doc. 15). Melinda Denish was ordered to file a response by July 6, 2023 (doc. 16). Soon after the order to respond was entered, Denish’s counsel moved to withdraw (doc. 17). The motion was granted, and Denish was given until August 4, 2023 to find new counsel (doc. 20). Counsel mailed a copy of Denish’s file to her on July 10, 2023 and the copy was delivered on July 11, 2023. Counsel also emailed a copy to Denish (doc. 21). To date, no attorney has filed a notice of appearance on behalf of Denish and she has not filed a pro se response to the motion for summary judgment. 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) 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 S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011) (citation omitted). By this Order, Denish is given notice that this Court intends to dismiss this action without prejudice for failure to prosecute, 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. Accordingly, Denish is given the opportunity to show cause by September 11, 2023, why this action should not be dismissed for failure to prosecute. If Denish does not want to pursue this action, she may file a written request for dismissal. See Fed. R. Civ. P. 41(a)(2) (The Rule provides for voluntary dismissal of an action “at the plaintiff’s request only by court order, on terms that the court considers proper.”) The Clerk is directed to mail a copy of this Order, by certified mail return receipt requested, and by first class mail, to Denish at the following address: Melinda Denish 274 Gwen Road Pine Hill, Alabama 36769 DONE and ORDERED this the 22nd day of August 2023. s/ Kristi K. DuBose KRISTI K. DuBOSE UNITED STATES DISTRICT JUDGE