Marc Perry v. Zinn Petroleum Companies, LLC

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13558
Non-Argument Calendar
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D.C. Docket No. 0:11-cv-62039-WJZ
MARC PERRY,
Plaintiff-Appellant,
versus
ZINN PETROLEUM COMPANIES, LLC,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 8, 2012)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Marc Perry appeals the district court’s dismissal of his complaint, which
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alleged that his former employer, Zinn Petroleum Companies, LLC, violated his
rights under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and
Florida’s Workers’ Compensation Law, Fla. Stat. § 440.205. The district court
dismissed Perry’s complaint without prejudice because Perry did not comply with
the district court’s orders to file (1) a statement of his claim, and (2) either a joint
pre-trial stipulation or a unilateral pre-trial catalog. After review, we vacate the
district court’s “Final Order of Dismissal” and remand this case for further
proceedings.
I. BACKGROUND
On September 16, 2011, Perry filed a three-count complaint against his
employer, Zinn, for whom he had worked for approximately two years. In Count 1
of the complaint, Plaintiff Perry alleged that Defendant Zinn had willfully failed to
pay him overtime pay, in violation of 29 U.S.C. § 207(a)(1). Perry also separately
alleged that (1) he injured his back while working at Zinn on October 27, 2009;
(2) he was unable to work for several months; and (3) when he was cleared to
return to work, Zinn notified him that there was no position available for him.
Perry’s complaint alleged, in Count 2, that Zinn’s refusal to maintain an open
position for him, or to accommodate his back injury, violated Florida’s Workers’
Compensation Law, Fla. Stat. § 440.205. In Count 3, Perry sought declaratory
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relief, pursuant to 28 U.S.C. §§ 2201 and 2202, regarding Defendant Zinn’s failure
to comply with the provisions of the FLSA.
After Defendant Zinn answered, the district court issued a December 5,
2011, order instructing Perry to file a “statement of the claim” within 20 days of
the date the order was issued. The statement was to set forth “the amount of
alleged unpaid wages, the means of calculating such wages, and the nature of said
wages.” The district court’s order advised Perry that failure to adhere to the order
could result in the whole or partial dismissal of Perry’s complaint. Perry did not
file a statement of his claim within 20 days or at any point thereafter.
On January 13, 2012, the district court entered an order setting a pre-trial
conference for June 15, 2012. In this order, and pursuant to Local Rule 16.1.M,
the district court stated, inter alia, that a “Pre-Trial Stipulation” or “Unilateral Pre-
Trial Catalogues” must be filed by noon, fourteen days prior to the June 15 pre-
trial conference (i.e., by June 1 at noon).1 This order further advised that failure to
comply would result in dismissal without prejudice, as follows:
1
The Local Rules for the Southern District of Florida do not expressly define “Pre-Trial
Catalogue.” See S.D. Fla. L.R. 16.1. The Local Rules, however, require parties to file a pre-trial
stipulation with the court, or, if counsel for the parties cannot agree to execute a joint stipulation,
“each counsel shall file and serve separate proposed pretrial stipulations.” S.D. Fla. L.R. 16.1(e),
(f). From this Local Rule, it is clear that the district court used the term “Unilateral Pre-Trial
Catalogues” in its January 13, 2012 order to refer to the mandatory filing of “separate proposed
pretrial stipulations.”
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If a pre-trial stipulation is not filed, then the parties must file unilateral
pre-trial catalogues by the time prescribed above. Upon the failure of
plaintiff to file a unilateral pre-trial catalogue, the court shall dismiss the
case without prejudice. If a defendant fails to file a unilateral pre-trial
catalogue within the time prescribed above, defendant will be precluded
from entering any physical or documentary evidence and may call no
witnesses other than the defendant . . . .
Between January 13, 2012, and June 1, 2012 (the deadline), Perry never filed a
pre-trial stipulation or a unilateral pre-trial catalogue.
On June 1, 2012, the district court entered a sua sponte “Final Order of
Dismissal” dismissing Perry’s complaint without prejudice for failure to comply
with the court’s two orders and with Southern District of Florida Local Rule 16.1.
The district court noted that Perry had failed to file a statement of his claim, as
required by the district court’s December 5, 2011, order, and that he also had
failed to file a unilateral pre-trial catalog, as required by the district court’s
January 13, 2012, order. The district court also noted that Perry had not moved for
an extension of time as to either the statement of claim or the unilateral pre-trial
catalog.
On June 4, 2012, Perry moved for reconsideration, but admitted that he
failed to comply with the district court’s orders. Perry’s counsel stated that he had
drafted the statement of the claim, but inadvertently had forgotten to file it.
Counsel argued in mitigation that he and Zinn’s counsel had filed a form
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consenting to proceed before a magistrate judge, and both mistakenly believed that
the case had been referred to a magistrate judge, who counsel presumed would
adopt a new schedule for filings. Perry also noted that, although he could re-file
his complaint, he would be unable to recover some of his unpaid overtime wages
due to the operation of the statute of limitations on his FLSA claim. The district
court denied the motion for reconsideration.
Before filing the notice of appeal, Perry’s counsel filed, on June 8, 2012, the
same lawsuit with the same three counts. On June 29, 2012, Perry filed a notice of
appeal from the district court’s “Final Order of Dismissal.” Perry did not appeal
the district court’s denial of his motion for reconsideration.2
II. DISCUSSION
We review a district court’s dismissal of a complaint for failure to comply
with court rules for an abuse of discretion. Betty K Agencies, Ltd. v. M/V
Monada, 432 F.3d 1333, 1337 (11th Cir. 2005). “Discretion means the district
court has a range of choice, and that its decision will not be disturbed as long as it
stays within that range and is not influenced by any mistake of law.” Id.2
We previously denied Zinn’s motion to dismiss this appeal for a lack of jurisdiction,
concluding that we possess jurisdiction because the district court’s involuntary dismissal of the
complaint is a final, appealable order. Perry v. Zinn Petroleum Cos., LLC, No. 12-13558 (11th
Cir. Sept. 10, 2012) (unpublished order).
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(quotation marks omitted).
The district court may sua sponte dismiss an action pursuant to Federal Rule
of Civil Procedure 41(b) if the plaintiff fails to comply with court rules or a court
order. See Fed. R. Civ. P. 41(b); Betty K Agencies, 432 F.3d at 1337. The district
court also has inherent authority to sanction parties for “violations of procedural
rules or court orders,” up to and including dismissals with prejudice. Donaldson
v. Clark, 819 F.2d 1551, 1557 n.6 (11th Cir. 1987); Betty K Agencies, 432 F.3d at
1337. “While dismissal is an extraordinary remedy, dismissal upon disregard of
an order, especially where the litigant has been forewarned, generally is not an
abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
Here, Plaintiff Perry failed to follow not one but two court orders, in
circumstances in which the district court had forewarned Perry that failure to do so
could result in dismissal. The undisputed facts show a record of delay on Perry’s
part. Thus, ordinarily we would say that the district court did not abuse its
discretion in dismissing Perry’s complaint without prejudice. However, on appeal,
Perry argues that the district court abused its discretion because (1) the statute of
limitations applicable to FLSA claims now bars him from recovering a portion of
his alleged unpaid overtime wages; (2) the dismissal here thus amounted to a
dismissal with prejudice; and (3) a dismissal with prejudice is an unduly severe
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sanction in a case where there was no clear record of willful delay or other
contumacious behavior by Perry or his counsel.3
This Court has instructed that, where a dismissal without prejudice has the
effect of precluding a plaintiff from refiling his claim due to the running of the
statute of limitations, the dismissal is “tantamount to a dismissal with prejudice, a
drastic remedy to be used only in those situations where a lesser sanction would
not better serve the interests of justice. ” Burden v. Yates, 644 F.2d 503, 505 (5th
Cir. Unit B May 1981) (internal quotation marks omitted); see also Boazman v.
Econ. Lab., Inc., 537 F.2d 210, 213 (5th Cir. 1976) (holding “that where the
dismissal is without prejudice, but the applicable statute of limitations probably
bars further litigation,” we apply the “stricter” standard of review that we
ordinarily employ when reviewing a dismissal with prejudice).4 These two
decisions bear full discussion because they govern the analysis here.
In Boazman, Plaintiff Boazman brought an employment discrimination
action against his employer. 537 F.2d at 211. The district court dismissed his case
3
Under the FLSA, claims for unpaid overtime must be “commenced within two years
after the cause of action accrued.” 29 U.S.C. § 255(a). This period is extended to three years if
the cause of action “aris[es] out of a willful violation.” Id.4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
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without prejudice due to Boazman’s failure to comply with the court’s orders
regarding the filing of a response to the employer’s motion to dismiss, which
orders warned Boazman that failure to respond could result in dismissal. 537 F.2d
at 211-12. The effect of the dismissal, however, was to bar any further litigation
of the merits of Boazman’s action due to the statute of limitations applicable to
Boazman’s Title VII claims. Id. at 211. The Fifth Circuit reversed the dismissal,
concluding that, in these circumstances, a dismissal without prejudice was
effectively a dismissal with prejudice, and that such a sanction was unduly severe
because the record disclosed no “contumacious indifference to the Court” on the
part of Boazman and because lesser sanctions were available. Id. at 212-13.
Similarly, in Burden, Plaintiff Burden failed to comply with three separate
pre-trial orders entered by the district court, one of which warned Burden that
failure to comply would result in the dismissal of his case. 644 F.2d at 504. Based
on Burden’s non-compliance with these orders, the district court dismissed
without prejudice Burden’s Motor Vehicle Information and Cost Savings Act, 15
U.S.C. § 1981 et seq. (repealed 1994), complaint after the statute of limitations
had run on his cause of action. Id. at 504-05. Drawing on the reasoning contained
in Boazman, the Fifth Circuit concluded that the dismissal was “tantamount to a
dismissal with prejudice.” Id. at 505. The Fifth Circuit further concluded that a
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dismissal with prejudice was not warranted because Burden’s “failure to comply
with the court order was more a matter of negligence than purposeful delay,” and
because the district court had not employed lesser sanctions before dismissing the
case. Id.We first conclude, based on Burden and Boazman, which dealt with
circumstances analogous to those in the present case, that the district court’s
“Final Order of Dismissal” amounts to a dismissal of a significant portion of
Perry’s FLSA claim with prejudice. Perry filed his complaint on September 16,
2011, and, following the district court’s “Final Order of Dismissal,” he re-filed the
complaint on June 8, 2012. Under the three-year statute of limitations applicable
to claims alleging willful violations of the FLSA, at the time of Perry’s initial
filing in September 2011, he was entitled to claim unpaid overtime wages going
back to September 2008. See 29 U.S.C. § 255(a). Following the district court’s
dismissal of Perry’s complaint, and Perry’s subsequent re-filing, the three-year
statute of limitations would only allow Perry to claim overtime wages from June
2009 through the end of his employment with Zinn, a difference of approximately
eight months. See id. Thus, the district court’s “Final Order of Dismissal” was
“tantamount to a dismissal with prejudice” as to much of Perry’s FLSA claim, and
we will review the district court’s order under the standard we ordinarily apply to
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dismissals with prejudice. Burden, 644 F.2d at 505; see Boazman, 537 F.2d at
213.
A dismissal with prejudice is a sanction of last resort, and is only proper if
the district court finds “both a clear record of willful conduct and a finding that
lesser sanctions are inadequate.” Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir.
2006). Moreover, “findings satisfying both prongs of [the] standard are essential
before dismissal with prejudice is appropriate.” Betty K Agencies, 432 F.3d at
1339. While we have “occasionally inferred” a finding that lesser sanctions are
inadequate, as in cases “where lesser sanctions would have ‘greatly prejudiced’
defendants,” we have never suggested that the district court is relieved of its
obligation to make that finding in the first instance. Kilgo v. Ricks, 983 F.2d 189,
193 (11th Cir. 1993).
In this case, the district court failed to make findings sufficient to enable us
to assess whether it abused its discretion. The district court did not make a finding
that Perry’s failure to comply with its orders amounted to willful conduct. See
Zocaras, 465 F.3d at 483; Betty K Agencies, 432 F.3d at 1338. And, based on the
record before us, we cannot infer such a finding. Rather, as evidenced by Perry’s
motion for reconsideration, the failure of Perry’s counsel to comply with the
district court’s two orders was attributable to counsel’s negligence and mistaken
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belief concerning the referral of the complaint to a magistrate judge. Mere
negligence or confusion is not sufficient to justify a finding of willful delay or
misconduct. Zocaras, 465 F.3d at 483.
Nor did the district court explicitly consider whether lesser sanctions would
have been adequate to obtain Perry’s compliance with court orders, or whether
lesser sanctions would have prejudiced Zinn. See Kilgo, 983 F.2d at 193. We
therefore vacate the district court’s “Final Order of Dismissal” and remand this
case for further proceedings not inconsistent with this opinion.
VACATED AND REMANDED.
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