USCA11 Case: 23-12194 Document: 21-1 Date Filed: 11/30/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12194
Non-Argument Calendar
____________________
BRIONA HUBBARD,
Plaintiff-Appellant,
versus
BEST IN TOWN INC.,
d.b.a. The Furnace,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:22-cv-00399-ACA
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2 Opinion of the Court 23-12194
____________________
Before WILSON, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
Briona Hubbard appeals the sua sponte dismissal of her com-
plaint against Best In Town, Inc. d/b/a The Furnace. After careful
consideration, we vacate and remand for additional proceedings.
I.
Hubbard twice sought employment at The Furnace, an ex-
otic dance club in Birmingham, Alabama, in December 2020 and
again in March 2021. Twice she was told by The Furnace’s “house
mom” that the club “has too many Black girls.” Consequently,
Hubbard filed a charge with the Equal Employment Opportunity
Commission, which issued a right-to-sue letter on December 29,
2021. She then sued The Furnace for failure to hire under both
Title VII of the Civil Rights Act of 1964 and
42 U.S.C. § 1981, alleg-
ing racial discrimination in violation of each statute. Kira Fon-
teneau represents Hubbard in her suit.
The district court scheduled a telephone conference for June
12, 2023, and sent electronic notification of the order. After counsel
for both parties failed to dial in, the courtroom deputy spoke with
someone at Fonteneau’s office who indicated she would try to
reach Fonteneau. The court scheduled an in-person hearing for
June 14, 2023, and again sent electronic notification of the order.
Neither party appeared for the hearing, and the courtroom deputy
could not reach either party’s counsel. The next day, the court sua
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23-12194 Opinion of the Court 3
sponte dismissed the action without prejudice for failure to prose-
cute and obey court orders under Federal Rule of Civil Procedure
41(b).
Five days later, Hubbard filed a motion to alter, amend, or
vacate its judgment under Rule 59(e). The motion apologized for
Fonteneau’s oversight, explained that temporary support staff had
failed to properly docket electronic notices from the court, and as-
sured corrective measures were in place. It urged the court to va-
cate the judgment to ensure that Hubbard “is not harmed by the
clerical errors on [Fonteneau’s] part that caused [Fonteneau] not to
appear as required by the Court.” The district court denied her
motion as improper under Rule 59(e) and inadequate under Rule
60(b)(1).
This appeal followed. Hubbard argues that the district
court’s dismissal must be construed as with prejudice and unwar-
ranted as an extreme sanction.
II.
The district courts may dismiss an action for failure to pros-
ecute and obey court orders under two sources of authority. The
Federal Rules provide, “If the plaintiff fails to prosecute or to com-
ply with . . . a court order, a defendant may move to dismiss the
action.” Fed. R. Civ. P. 41(b). The courts may also sua sponte dis-
miss a case under their inherent power to manage their dockets.
See Link v. Wabash R.R. Co.,
370 U.S. 626, 630–31 (1962) (“The au-
thority of a court to dismiss sua sponte for lack of prosecution has
generally been considered an ‘inherent power,’ governed not by
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4 Opinion of the Court 23-12194
rule or statute but by the control necessarily vested in courts to
manage their own affairs so as to achieve the orderly and expedi-
tious disposition of cases.”). Our decisions often “elide this neat
distinction” between the two sources and allow the court to pro-
ceed sua sponte under either authority. Betty K Agencies, Ltd. v. M/V
Monada,
432 F.3d 1333, 1337–38 (11th Cir. 2005) (collecting cases).
We review dismissals for failure to prosecute and failure to obey
court rules for abuse of discretion. See
id. at 1337; Gratton v. Great
Am. Commc’ns,
178 F.3d 1373, 1374 (11th Cir. 1999).
The district court characterized its dismissal as without prej-
udice. But when “a dismissal without prejudice has the effect of
precluding a plaintiff from refiling [her] claim due to the running
of the statute of limitations, the dismissal is tantamount to a dis-
missal with prejudice.” Mickles v. Country Club, Inc.,
887 F.3d 1270,
1280 (11th Cir. 2018). There are two statutes of limitations at play
here. For § 1981 failure to hire claims, we apply Alabama’s two-
year statute of limitations for personal injury claims. See Moore v.
Liberty Nat’l Life Ins. Co.,
267 F.3d 1209, 1219 (11th Cir. 2001). 1 For
Title VII actions, a plaintiff must file suit within 90 days after receipt
1 Section 1981 does not have its own statute of limitations. The applicable
statute of limitations depends upon the action. Any § 1981 claim made possi-
ble by the Civil Rights Act of 1991 amendments is governed by
28 U.S.C.
§ 1658’s four-year statute of limitations. See Jones v. R.R. Donnelley & Sons Co.,
541 U.S. 369, 382 (2004). Any § 1981 claim available prior to the 1991 amend-
ments is subject to the analogous state statute of limitations for personal injury
actions. Failure to hire claims were cognizable under § 1981 prior to the 1991
amendments. See Patterson v. McLean Credit Union,
491 U.S. 164, 182 (1989),
superseded by
42 U.S.C. § 1981(b) (1991).
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23-12194 Opinion of the Court 5
of a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1). Here, the district
court dismissed Hubbard’s case in June 2023, more than two years
after the alleged discrimination and nearly a year and a half past the
issuance of her right-to-sue letter. Because the statutes of limita-
tions for both § 1981 and Title VII bar Hubbard from refiling her
failure to hire claims against The Furnace, we treat the district
court’s dismissal as with prejudice.
“A dismissal with prejudice is a sanction of last resort, and it
is only proper if the district court finds both (1) a clear record of
delay or willful conduct, and (2) a finding that lesser sanctions are
inadequate.” Mickles,
887 F.3d at 1280. Although we may find “im-
plicit in an order the conclusion that lesser sanctions would not suf-
fice . . . we have never suggested that the district court need not
make that finding, which is essential before a party can be penalized
for [her] attorney’s conduct.” Mingo v. Sugar Cane Growers Co-Op.
of Fla.,
864 F.2d 101, 102 (11th Cir. 1989) (internal citations and quo-
tations omitted).
The record before us does not warrant the “draconian rem-
edy of a dismissal with prejudice.” Betty K Agencies, Ltd.,
432 F.3d
at 1339. The oversights, although imperfect, fall short of support-
ing a clear pattern of delay and willful misconduct. Further, the
record provides neither explicit nor implicit findings that lesser
sanctions are inadequate. Both the district court’s initial dismissal
and denial of motion for relief fail to demonstrate any recognition
of the statutory bars that effectively dismissed this action with prej-
udice. Rather, the orders focus upon counsel’s failings and aspects
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6 Opinion of the Court 23-12194
of judicial administration, and explicitly dismissed the action as
without prejudice. We understand the district court’s concerns,
and do not foreclose the potential availability of other lesser sanc-
tions. Under the circumstances of this case, however, such a sanc-
tion of last resort is unwarranted. We therefore VACATE and
REMAND the district court’s dismissal order for further proceed-
ings.
VACATED AND REMANDED.
