Wilkins v. Blackman

Opinion

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 2:20-CV-114203-ROSENBERG

THURLOW FREDRICK WILKINS,

Plaintiff,

v.

PAUL BLACKMAN et al.,

Defendants. /

ORDER ADOPTING REPORT AND RECOMMENDATION

THIS CAUSE comes before the Court upon “Defendant Triston Ragoodial’s Motion for Final Summary Judgment (and Memorandum of Law),” DE 34, which was referred to the Honorable Lauren F. Louis for a Report and Recommendation, DE 28. On January 28, 2022, Judge Louis recommended that the Court grant Defendant’s Motion for Summary Judgment because Plaintiff had failed to respond to refute Defendant’s claims. DE 38 at 7. Plaintiff objected, asking the Court to permit Plaintiff to respond to the Motion for Summary Judgment. DE 39 at 3. The Court declined to adopt the Report and Recommendation because Plaintiff asserted that he possessed unfiled witness statements that would raise a genuine dispute of material fact. DE 40 at 4. The Court provided Plaintiff with another month to respond, setting a July 25, 2022 deadline, and instructed that Plaintiff should not anticipate any extensions or additional opportunities to respond to Defendant’s Motion for Summary Judgment. Id. Still, Plaintiff asked Judge Louis for a thirty-day extension to respond. DE 43. He received an extension until August 24, 2022. Id. But Plaintiff did not respond and, on August 30, 2022, filed “Plaintiff’s Motion for Voluntary Dismissal,” asking the Court to dismiss his case without prejudice. DE 44. For the reasons set forth below, the Court vacates its order declining to adopt the Report and Recommendation and now adopts the Report and Recommendation. judgment, the plaintiff may dismiss his case by court order only. Fisher v. P.R. Marine Mgmt., Inc., 940

F.2d 1502, 1502–03 (11th Cir. 1991). The issue is left to the discretion of the court. Mosley v. JLG Indus., Inc., 189 F. App’x 874, 875 (11th Cir. 2006). In exercising its discretion, the court should “keep in mind the interests of the defendant.” Id. In Mosley v. JLG Industries, Inc., the Eleventh Circuit affirmed a denial of a motion for dismissal because significant time had lapsed since commencement of the case, the plaintiff had received “extensions . . . for naught,” and “[p]laintiff’s motion to dismiss—filed while [d]efendants’s summary judgment motions were pending—was ‘solely motivated to avoid an expected adverse ruling on Defendants’ summary judgment motions.’” Id. at 876. Here, in its discretion, the Court will not grant Plaintiff’s Motion for Voluntary Dismissal. First, significant time has lapsed in the case since it was commenced on June 23, 2020. DE 1. The case has

languished because Plaintiff failed to respond to Defendant’s discovery requests adequately, see DE 22 at 1–2; DE 26; DE 31 at 1, 8, and now it is almost three years old. Second, Plaintiff has failed to respond on at least three occasions. See DE 26; DE 38 at 7; DE 44. After Judge Louis recommended that the Court grant Defendant’s Motion for Summary Judgment because Plaintiff had failed to respond to the motion, DE 38 at 3, 7–8, the Court declined to do so and issued a revised briefing schedule to permit Plaintiff to respond, DE 40 at 4–5. The Court instructed that Plaintiff should not anticipate any extensions. Id. at 4. Plaintiff received a thirty-day extension to respond with a deadline of August 24, 2022. DE 43. On August 30, 2022, instead of responding, Plaintiff asked the Court to dismiss his case without prejudice. DE 44. Therefore, while Plaintiff has had opportunities to respond to Defendant’s Motion for Summary Judgment, Plaintiff has failed to do so.

Third, and last, Plaintiff may have filed for voluntary dismissal to avoid the Court adopting Judge Louis’s recommendation to grant Defendant’s Motion for Summary Judgment. But, even if Plaintiff did not file for this reason, Plaintiff's Motion for Voluntary Dismissal should be denied because he has had multiple opportunities to respond and has failed to do so repeatedly. Therefore, for the foregoing reasons, the Court concludes that Defendant’s Motion for Summary Judgment should be granted for all the reasons set forth in the Report and Recommendation. Accordingly, it is hereby ORDERED AND ADJUDGED: 1. The Court’s Order [DE 40] is VACATED. 2. Magistrate Judge Louis’s Report and Recommendation [DE 38] is ADOPTED. 3. Defendant’s Motion for Summary Judgment [DE 34] is GRANTED. 4. Plaintiff's Motion for Voluntary Dismissal [DE 44] is DENIED. 5. Defendant shall submit to Chambers a proposed final judgment in Microsoft Word format by e-mail at rosenberg@flsd.uscourts.gov within three days. 6. The Clerk of the Court shall CLOSE THIS CASE. DONE and ORDERED in Chambers, West Palm Beach, Florida, this 31st day of August, 2022.

Copies furnished to: ROBIN L. ROSENBERG Counsel of Record UNITED STATES DISTRICT JUDGE