USCA11 Case: 20-14844 Date Filed: 07/07/2021 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-14844 Non-Argument Calendar ________________________
D.C. Docket No. 6:20-cv-00390-CEM-GJK
LILIBETH MICHELSON,
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF THE ARMY AGENCY,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 7, 2021)
Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges. USCA11 Case: 20-14844 Date Filed: 07/07/2021 Page: 2 of 6
PER CURIAM:
Lilibeth Michelson, proceeding pro se, appeals the denial of her motion for
reconsideration of the district court’s order dismissing her civil-rights complaint
against the Secretary of the Department of the Army (“the Army”). The district
court dismissed Michelson’s case, without prejudice, because of her failure to file a
certificate of interested persons within a specified period of time. On appeal,
Michelson argues that she never received the district court’s orders directing her to
submit a certificate of interested persons, and therefore she did not ignore or fail to
comply with them. She further argues that the district court erred by refusing to
consider the fact that she could not refile her complaint after it was dismissed
because the limitations period had expired. 1
We review a dismissal for failure to follow local court rules solely for an
abuse of discretion. Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337
(11th Cir. 2005). We also review the denial of a motion for reconsideration solely
for an abuse of discretion. Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir.
2010).
1 Although Michelson designated only the denial of her post-judgment motion for reconsideration in her notice of appeal, the arguments she raises on appeal challenge the underlying dismissal of her complaint as well, which reflects an “overriding intent” to appeal the original judgment. Thus, appellate jurisdiction exists to review that as well. See Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 738-39 n.1 (5th Cir. 1980); Foman v. Davis, 371 U.S. 178, 181-82 (1962) (same). We have also considered, and rejected, the Army’s contention that certain deficiencies in Michelson’s pro se brief reflect an abandonment of her arguments on appeal. 2 USCA11 Case: 20-14844 Date Filed: 07/07/2021 Page: 3 of 6
Pro se pleadings are held to a less stringent standard than those drafted by
attorneys and thus are liberally construed. Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998). However, our duty to construe a pro se litigant’s
pleadings liberally does not authorize us to re-write the complaint for the plaintiff.
Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006). Similarly, despite
the leniency afforded to pro se litigants, we nevertheless require them to conform
to procedural rules. Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002).
Accordingly, when a pro se plaintiff fails to follow local court rules, the district
court may sua sponte dismiss a case pursuant to either (1) Federal Rule of Civil
Procedure 41(b), or (2) the court’s inherent power to manage its docket. See Betty
K Agencies, 432 F.3d at 1337.
Where a dismissal without prejudice has the effect of precluding the plaintiff
from re-filing her claim because the limitations period has expired, that is
“tantamount to a dismissal with prejudice.” Justice v. United States, 6 F.3d 1474,
1482 n.15 (11th Cir. 1993). “Dismissal with prejudice is a drastic remedy to be
used only in those situations where a lesser sanction would not better serve the
interests of justice.” Id. Thus, a district court abuses its discretion by sua sponte
dismissing a civil action with prejudice if (1) it fails to make a finding that the
plaintiff acted willfully or that a lesser sanction would not have sufficed, and
(2) nothing in the record supports a finding that the plaintiff acted willfully or that a
3 USCA11 Case: 20-14844 Date Filed: 07/07/2021 Page: 4 of 6
lesser sanction would not have sufficed. See Betty K Agencies, 432 F.3d at 1338-
42. Nevertheless, “[w]hile 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).
There is “a rebuttable presumption that an item properly mailed was
received by the addressee.” Konst v. Florida E. Coast Ry. Co., 71 F.3d 850, 851
(11th Cir. 1996). This “presumption of receipt” arises upon evidence that the item
was properly addressed, had sufficient postage, and was deposited in the mail. Id.
A party must do more than simply allege that she never received a mailed item in
order to rebut the presumption. Barnett v. Okeechobee Hosp., 283 F.3d 1232,
1241-42 (11th Cir. 2002).
For the following reasons, we conclude that the district court abused its
discretion in dismissing Michelson’s case. It is undisputed that the district court
entered an order directing Michelson to file a certificate of interested persons by
July 15, 2020. And although Michelson disputed ever receiving a copy of that
order, a presumption of receipt follows proper mailing. Michelson has not offered
any evidence to rebut that presumption apart from her bare allegation that she
never received the order. Thus, we are required to presume that Michelson
4 USCA11 Case: 20-14844 Date Filed: 07/07/2021 Page: 5 of 6
received a copy of the district court’s order in the mail, and it is undisputed that she
did not file a certificate of interested persons within the time specified.
However, in dismissing Michelson’s complaint, the district court did not
make any finding that Michelson willfully disregarded its order, nor did it give any
reason for concluding that a lesser sanction would not have sufficed. See Betty K
Agencies, 432 F.3d at 1338-42. Importantly, we note that the dismissal of
Michelson’s complaint, although designated as “without prejudice,” may have
been “tantamount to a dismissal with prejudice” because, as Michelson admitted in
her complaint, she received her notice of the right to sue from the Equal
Employment Opportunity Commission in March of 2020. Thus, when the district
court dismissed Michelson’s case in August of 2020, more than 90 days had passed
since she had received her notice of the right to sue, and she would have been
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USCA11 Case: 20-14844 Date Filed: 07/07/2021 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-14844 Non-Argument Calendar ________________________
D.C. Docket No. 6:20-cv-00390-CEM-GJK
LILIBETH MICHELSON,
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF THE ARMY AGENCY,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 7, 2021)
Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges. USCA11 Case: 20-14844 Date Filed: 07/07/2021 Page: 2 of 6
PER CURIAM:
Lilibeth Michelson, proceeding pro se, appeals the denial of her motion for
reconsideration of the district court’s order dismissing her civil-rights complaint
against the Secretary of the Department of the Army (“the Army”). The district
court dismissed Michelson’s case, without prejudice, because of her failure to file a
certificate of interested persons within a specified period of time. On appeal,
Michelson argues that she never received the district court’s orders directing her to
submit a certificate of interested persons, and therefore she did not ignore or fail to
comply with them. She further argues that the district court erred by refusing to
consider the fact that she could not refile her complaint after it was dismissed
because the limitations period had expired. 1
We review a dismissal for failure to follow local court rules solely for an
abuse of discretion. Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337
(11th Cir. 2005). We also review the denial of a motion for reconsideration solely
for an abuse of discretion. Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir.
2010).
1 Although Michelson designated only the denial of her post-judgment motion for reconsideration in her notice of appeal, the arguments she raises on appeal challenge the underlying dismissal of her complaint as well, which reflects an “overriding intent” to appeal the original judgment. Thus, appellate jurisdiction exists to review that as well. See Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 738-39 n.1 (5th Cir. 1980); Foman v. Davis, 371 U.S. 178, 181-82 (1962) (same). We have also considered, and rejected, the Army’s contention that certain deficiencies in Michelson’s pro se brief reflect an abandonment of her arguments on appeal. 2 USCA11 Case: 20-14844 Date Filed: 07/07/2021 Page: 3 of 6
Pro se pleadings are held to a less stringent standard than those drafted by
attorneys and thus are liberally construed. Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998). However, our duty to construe a pro se litigant’s
pleadings liberally does not authorize us to re-write the complaint for the plaintiff.
Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006). Similarly, despite
the leniency afforded to pro se litigants, we nevertheless require them to conform
to procedural rules. Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002).
Accordingly, when a pro se plaintiff fails to follow local court rules, the district
court may sua sponte dismiss a case pursuant to either (1) Federal Rule of Civil
Procedure 41(b), or (2) the court’s inherent power to manage its docket. See Betty
K Agencies, 432 F.3d at 1337.
Where a dismissal without prejudice has the effect of precluding the plaintiff
from re-filing her claim because the limitations period has expired, that is
“tantamount to a dismissal with prejudice.” Justice v. United States, 6 F.3d 1474,
1482 n.15 (11th Cir. 1993). “Dismissal with prejudice is a drastic remedy to be
used only in those situations where a lesser sanction would not better serve the
interests of justice.” Id. Thus, a district court abuses its discretion by sua sponte
dismissing a civil action with prejudice if (1) it fails to make a finding that the
plaintiff acted willfully or that a lesser sanction would not have sufficed, and
(2) nothing in the record supports a finding that the plaintiff acted willfully or that a
3 USCA11 Case: 20-14844 Date Filed: 07/07/2021 Page: 4 of 6
lesser sanction would not have sufficed. See Betty K Agencies, 432 F.3d at 1338-
42. Nevertheless, “[w]hile 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).
There is “a rebuttable presumption that an item properly mailed was
received by the addressee.” Konst v. Florida E. Coast Ry. Co., 71 F.3d 850, 851
(11th Cir. 1996). This “presumption of receipt” arises upon evidence that the item
was properly addressed, had sufficient postage, and was deposited in the mail. Id.
A party must do more than simply allege that she never received a mailed item in
order to rebut the presumption. Barnett v. Okeechobee Hosp., 283 F.3d 1232,
1241-42 (11th Cir. 2002).
For the following reasons, we conclude that the district court abused its
discretion in dismissing Michelson’s case. It is undisputed that the district court
entered an order directing Michelson to file a certificate of interested persons by
July 15, 2020. And although Michelson disputed ever receiving a copy of that
order, a presumption of receipt follows proper mailing. Michelson has not offered
any evidence to rebut that presumption apart from her bare allegation that she
never received the order. Thus, we are required to presume that Michelson
4 USCA11 Case: 20-14844 Date Filed: 07/07/2021 Page: 5 of 6
received a copy of the district court’s order in the mail, and it is undisputed that she
did not file a certificate of interested persons within the time specified.
However, in dismissing Michelson’s complaint, the district court did not
make any finding that Michelson willfully disregarded its order, nor did it give any
reason for concluding that a lesser sanction would not have sufficed. See Betty K
Agencies, 432 F.3d at 1338-42. Importantly, we note that the dismissal of
Michelson’s complaint, although designated as “without prejudice,” may have
been “tantamount to a dismissal with prejudice” because, as Michelson admitted in
her complaint, she received her notice of the right to sue from the Equal
Employment Opportunity Commission in March of 2020. Thus, when the district
court dismissed Michelson’s case in August of 2020, more than 90 days had passed
since she had received her notice of the right to sue, and she would have been
unable to refile. See Justice, 6 F.3d at 1482 n.15; 42 U.S.C. § 2000e-16(c).
The district court gave two reasons for denying Michelson’s motion for
reconsideration, both of which we conclude are insufficient. First, the district court
found that Michelson had adequate notice of its order—either because she was
presumed to have received a copy in the mail or because she admitted to having
access to PACER (where she could have viewed the order online). But while we
agree that Michelson has failed to rebut the presumption of receipt, receipt alone
5 USCA11 Case: 20-14844 Date Filed: 07/07/2021 Page: 6 of 6
does not establish willful disregard of a court order. Thus, the district court did not
make any clear finding that Michelson willfully disobeyed its directive.
Second, the district court found that Michelson’s argument regarding the
statute of limitations was “unavailing” and “insufficient to warrant any kind of
relief.” It is apparent from the face of Michelson’s complaint, however, that her
employment claims are now time-barred by the 90-day limitations period.
Furthermore, courts are obligated to liberally construe the pleadings and arguments
of pro se litigants. Consequently, we interpret Michelson’s filings as fairly raising
the valid argument that dismissal would be an unduly harsh sanction in her case,
given that any such dismissal effectively would be with prejudice. The district
court therefore should have considered whether a lesser sanction would have
sufficed under these circumstances.
Accordingly, we conclude that the district court abused its discretion in
dismissing Michelson’s complaint. We therefore vacate the dismissal and remand
the case for further proceedings consistent with this opinion.
VACATED AND REMANDED.