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 UNITED STATES DISTRICT COURT

 SOUTHERN DISTRICT OF FLORIDA

 Case No. 20-23230–CIV–CANNON\Otazo-Reyes

ANGELA MILNER, et al.,

Plaintiffs,

v.

TERI GALARDI,

Defendant.

/

 

PLAINTIFFS SHAKIR WILLIAMS, JOCELYN JOHNSON AND 

JAMMIE PARKER’S RULE 59(e) MOTION TO ALTER OR AMEND 

THE ORDER OF DISMISSAL [ECF 113]

NOW COMES dismissed Plaintiffs Shakir Williams, Jocelyn Johnson and Jammie

Parker (hereinafter “Plaintiffs”) by and through the undersigned counsel, and hereby files

this motion requesting the Court to alter or amend the Court Order [ECF 113] (hereinafter 

“Order”) pursuant to Fed.R.Civ.P. 59(e) to provide for some lesser sanction other than 

dismissal of their claims with prejudice for failing to attend the Court Ordered mediation. 

On September 9, 2021 the Court entered the Order dismissing Plaintiffs from this 

case without indicating whether the dismissal was based on Rule 37(d) or Rule 41(b) of the 

Fed.R.Civ.P. Critically, unless the Court otherwise specifies, an involuntary dismissal, 

other than a dismissal for lack of jurisdiction, improper venue, or lack of an indispensable

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party, is with prejudice. Fed.R.Civ.P. 41(b); Weissinger v. U.S., 423 F.2d 795, 799 (5th 

Cir. 1970).1

Under Rule 59(e) Plaintiffs have 28 days from the entry of the Order to file a motion 

to alter or amend the judgment.2

 Therefore this motion is timely. Courts generally 

recognize three grounds under Rule 59(e) for reconsidering an order and those are (i) an 

intervening change in controlling law (ii) availability of new evidence; and (iii) the need to 

correct clear error or prevent manifest injustice. 

“The burden is upon the movant to establish the extraordinary circumstances 

supporting reconsideration.” Mannings v. Sch. Bd. Of Hillsboro Cnty., Fla., 149 F.R.D. 

235, 235 (M.D. Fla. 1993). “A court has considerable discretion in deciding whether to 

grant a motion for reconsideration.” See Drago v. Jenne, 453 F.3d 1301, 1306 (11th Cir. 

2006). This motion focuses on item #3, the need to correct clear error or prevent manifest 

injustice.

The 11th Circuit has stated that a district court may dismiss a case or plaintiff with 

prejudice only where "there is a clear record of delay or willful contempt and a finding that 

lesser sanctions would not suffice.", quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th 

Cir.1983); see also McKelvey v. AT & T Technologies, Inc., 789 F.2d 1518, 1520 (11th 

Cir.1986) (dismissal justified only by "clear record of delay or contumacious conduct," 

 1 Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (holding that “the decisions of 

the United States Court of Appeals for the Fifth Circuit (the ‘former Fifth’ or the ‘old 

Fifth’), as that court existed on September 30, 1981, handed down by that court prior to the 

close of business on that date, shall be binding as precedent in the Eleventh Circuit.”)

2 FRCP 59(e) Motion to Alter or Amend a Judgment. A motion to alter or amend a 

judgment must be filed no later than 28 days after the entry of the judgment.

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quoting Martin-Trigona v. Morris, 627 F.2d 680, 682 (5th Cir.1980)). Mere delay will not 

suffice; "[a] finding of such extreme circumstances necessary to support the sanction of 

dismissal must, at a minimum, be based on evidence of willful delay; simple negligence 

does not warrant dismissal." McKelvey at 1520.

The Plaintiffs did not appear for the Court ordered mediation for the reasons stated 

in the Order. However, each Plaintiff fully participated in discovery, attended the Court 

Ordered settlement conference [ECF 45] presided over by U.S. Magistrate Judge OtazoReyes that resulted in no counteroffer ever made to the Plaintiffs opening offer and each 

Plaintiff had a pending motion for summary judgement on liability [ECF 112] when they 

were dismissed from this action with prejudice. Plaintiffs respectfully submit the record 

supports a finding of negligence in not attending the Court ordered mediation. There was 

no pattern of delay on behalf of the Plaintiffs nor was there willful or contemptuous 

disregard of the Court Order for mediation that would justify the ultimate sanction of a 

dismissal with prejudice that operates as an adjudication on the merits (Compare Gratton 

v. Great American Communications, 178 F.3d 1373, 1374 (11th Cir. 1999)(District Court 

properly dismissed case with prejudice after finding Plaintiff flouted discovery rules, 

destroyed evidence, misidentified a material witness in the case and ignored various court 

orders). Accordingly, Plaintiffs respectfully request the Court amend the Order pursuant 

to Rule 59(e) to consider and provide for a lesser sanction than dismissal with prejudice.3

 [Signature and date on the following page]

 3 The Plaintiffs combined claims are valued at over $1,000,000 (one million dollars) 

according to the pre-suit notices on file with the Court [ECF 112 Ex. “A” – Presuit Notices]. 

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Respectfully submitted this 15th day of September, 2021.

/s/ Astrid E. Gabbe, Esq.

FL Bar #635383

The Law Office of Astrid E. Gabbe, P.A.

P.O. Box 4216

Hollywood, FL, 33083

8954-303-9882

Email: astridgabbe@gmail.com

 

 CERTIFICATE OF GOOD FAITH CONFERENCE

Pursuant to Local Rule 7.1(a)(3)(B), I hereby certify that counsel for the Plaintiff conferred 

with Mr. Brodsky on September 14, 2021 to inquire if he would agree to the requested relief 

and he stated that he did not consent to any of the relief requested in the motion.

/s/ Astrid E. Gabbe, Esq.

FL Bar #635383

The Law Office of Astrid E. Gabbe, P.A.

P.O. Box 4216

Hollywood, FL, 33083

954-303-9882

Email: astridgabbe@gmail.com

 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on September 15, 2021, I electronically filed the

foregoing document with the Clerk of the Court using the NextGen CM/ECF filing

system. I also certify that the foregoing document is being served this date on all

counsel of record on the Service List via transmission of Notices of Electronic Filing

generated by the NextGen CM/ECF system.

/s/ Astrid E. Gabbe, Esq.

FL Bar #635383

The Law Office of Astrid E. Gabbe, P.A.

P.O. Box 4216

Hollywood, FL, 33083

954-303-9882

Email: astridgabbe@gmail.com

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