FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 19, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-15731

Non-Argument Calendar

________________________

D. C. Docket No. 07-00357-CV-CAR-5

ANDREW CALLOWAY,

Plaintiff-Appellant,

versus

PERDUE FARMS, INC.,

ABC, INC.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(February 19, 2009)

Before BIRCH, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
Andrew Calloway appeals the district court’s dismissal with prejudice of his

state law complaint against Perdue Farms, Inc. (“Perdue”) for failure to prosecute,

pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. After review, we

AFFIRM.

I. BACKGROUND

On 7 June 2007, W. Carl Reynolds and Katherine L. McArthur of the law

firm Reynolds, McArthur & Horne, counsel of record for Calloway, filed a

complaint in state court against Perdue alleging that Calloway, an employee of the

United States Department of Agriculture, suffered injuries as a result of Perdue’s

negligent inspection and maintenance of its poultry processing plant in Perry,

Georgia. R1-1 at 5-7. Perdue answered the complaint on 27 June 2007, and the

case was removed on diversity grounds to the United States District Court for the

Northern District of Georgia on 11 July 2007. R1-1 at 1; R1-2. On 10 August

2007, the parties filed a joint preliminary report and discovery plan, and Perdue

served its initial disclosures on Calloway. R1-9; R1-10. On 28 August 2007

Perdue served interrogatories and document production requests on Calloway. R1-

12. That same day, Bradley J. Survant of Reynolds, Horne & Survant, formerly

known as Reynolds, McArthur & Horne, filed a motion to withdraw from

representation. R1-14. He advised the court that Calloway was still represented by

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McArthur and attached to the motion Calloway’s signed consent. Id. Survant filed

an additional motion to withdraw on 28 August 2007 on behalf of Reynolds, Horne

& Survant, which also indicated that McArthur continued to represent Calloway.

R1-15. The district judge granted the motions on 1 September 2007. R1-16. On

17 September 2007, the district judge granted Perdue’s motion for change of

venue, filed on 28 August 2007, and the case was transferred to the Middle District

of Georgia. R1-13, 17.

On 8 October 2007, defense counsel sent a letter to McArthur inquiring as to

the status of Calloway’s initial disclosures and responses to Perdue’s

interrogatories and document requests. R1-23, Exh. A. McArthur informed

defense counsel that she never was retained by Calloway and that Calloway’s

employment contract was with Carl Reynolds, P.C. Id., Exh. B. McArthur

thereafter filed a notice of withdrawal as counsel with the district court on 17

October 2007. R1-21. She indicated that she no longer was affiliated with

Reynolds, McArthur & Horne and that it was her understanding that Carl Reynolds

and the law firm of Reynolds, Horne & Survant remained lead counsel in

Calloway’s case. Id. Upon receiving McArthur’s 17 October 2007 notice of

withdrawal, defense counsel faxed a letter to Survant asking him to clarify whether

his law firm represented Calloway or whether Calloway was proceeding pro se.

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R1-23, Exh. C. In response, Survant sent defense counsel a copy of the 1

September 2007 order, issued by the district judge in the Northern District of

Georgia, permitting his firm’s withdrawal as counsel in the case. Id., Exh. D.

On 31 October 2007, defense counsel sent Calloway a letter, along with

copies of Perdue’s interrogatories and document requests, asking that Calloway

respond to discovery within ten days. Id., Exh. E. After receiving no response,

Perdue advised Calloway in a second letter, sent via certified mail on 26 November

2007, that it would seek sanctions if he did not respond by 12 December 2007. Id.,

Exh. F. Calloway telephoned defense counsel on 28 November 2007 and informed

defense counsel that he was scheduled to undergo hip replacement surgery the next

week and was in the process of finding another attorney to represent him. Id. at 4.

Defense counsel agreed to an extension of time for responding to discovery and

prepared a joint motion to modify the discovery plan and scheduling order, which

he sent to Calloway via certified mail. Id. at 4-5, Exh. G. Defense counsel

requested that Calloway sign and return the motion, as well as enclosed

authorizations allowing defense counsel to obtain Calloway’s medical and

employment records. Id., Exh. G. Although Calloway received defense counsel’s

correspondence on 30 November 2007, he never signed and returned the joint

motion nor did he answer Perdue’s interrogatories and document production

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requests. Id. at 5, Exh. G at 2.

On 13 February 2008, Perdue filed the instant motion to dismiss on the

grounds that Calloway never responded to discovery and thus failed to prosecute

his case diligently. R1-22, 23. On 15 May 2008, the district judge issued a show

cause order, which was served on both Calloway personally and on McArthur as

counsel of record, directing Calloway to show cause within twenty days why his

claims should not be dismissed. R1-25 at 1. Although the judge found that

McArthur’s notice of withdrawal did not comply with the court’s local rules and

that she therefore remained counsel of record, he noted that there was some

confusion as to Calloway’s representation and that, as of the date McArthur filed

her notice of withdrawal, defense counsel treated Calloway as if he were pro se.

Id. McArthur thereafter filed another motion to withdraw, which the district court

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granted on 19 August 2008. R1-27, 28. In its order granting McArthur’s motion,

the court gave Calloway twenty days to obtain counsel and respond to Perdue’s

motion to dismiss. R1-28. The court warned Calloway that if no response was

received within the prescribed time, his case would be dismissed with prejudice.

Id.

Although Calloway’s current attorney entered an appearance as counsel on

 On 19 June 2008, the district court issued a second, identical show cause order after 1

discovering that the original order never was served upon McArthur. R1-26. 

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26 August 2008, Calloway never responded to either the show cause order or

Perdue’s motion. R1-29. On 12 September 2008, the district court dismissed the

complaint with prejudice after finding that Calloway “ha[d] done nothing to

prosecute his case since November 28, 2007,” even though “[t]he Court ha[d]

given him three opportunities to explain his failure to [] go forward with his case,

more than sufficient opportunity to deal with any problems caused by the

withdrawal of his counsel.” R1-30 at 2. Calloway filed a motion to reconsider,

arguing that the delay was attributable to his attorneys, which the district court

denied. R1-32 at 3; R1-34. This appeal followed.

II. DISCUSSION

We review the district court’s dismissal with prejudice under Rule 41(b) for

an abuse of discretion. See Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.

1985). Under this standard of review, we will not disturb the district court’s

decision unless it amounts to a clear error of judgment. See McMahan v. Toto, 256

F.3d 1120, 1128 (11th Cir. 2001).

Rule 41(b) authorizes the district court, on defendant’s motion, to dismiss an

action for failure to prosecute or comply with the rules of the court. Fed. R. Civ. P.

41(b); see Goforth, 766 F.2d at 1535. We have stated repeatedly that dismissal

with prejudice is an “extreme sanction” and “is plainly improper unless and until

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the district court finds a clear record of delay or willful conduct and that lesser

sanctions are inadequate to correct such conduct.” Betty K Agencies, Ltd. v. M/V

MONADA, 432 F.3d 1333, 1338-39 (11th Cir. 2005). The district court must make

findings satisfying both prongs of this standard before dismissal as a sanction

under Rule 41(b) is appropriate. See Mingo v. Sugar Cane Growers Co-op. of Fla.,

864 F.2d 101, 102-03 (11th Cir. 1989) (per curiam); see also Betty K Agencies,

432 F.3d at 1339 (“We rigidly require the district courts to make these findings

precisely because the sanction of dismissal with prejudice is so unsparing.”

(quotation marks, alteration, and citation omitted)). With respect to the first prong,

we have held that simple negligence is not sufficient to warrant dismissal. See

McKelvey v. AT & T Techs., Inc., 789 F.2d 1518, 1520 (11th Cir. 1986) (per

curiam). With respect to the second prong, while the district court must consider

the appropriateness of lesser sanctions, such consideration need not be explicit.

See Betty K Agencies, 432 F.3d at 1341; see also Gratton v. Great Am. Commc’ns,

178 F.3d 1373, 1374 (11th Cir. 1999) (“Dismissal under Rule 41(b) is appropriate

where there is . . . an implicit or explicit finding that lesser sanctions would not

suffice.”).

It is apparent from district court’s order that it found a clear pattern of delay,

and the record supports this finding. Despite having been given numerous

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opportunities, Calloway repeatedly failed to submit discovery, respond to Perdue’s

motion, or comply with the court’s show cause orders, even though he knew he was

not represented by counsel – as evidenced by the fact that he contacted defense

counsel directly, asked for an extension of time, and told defense counsel that he

was in the process of seeking representation – and that the onus was therefore on

him to prosecute his case. See Betty K Agencies, 432 F.3d at 1338 (noting that “the

harsh sanction of dismissal with prejudice is . . . more appropriate in a case where a

party, as distinct from counsel, is culpable”). The record thus demonstrates that

Calloway’s non-compliance was willful and not merely the result of mistake or

negligence.

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The record also supports the district court’s implicit finding, based on

Calloway’s “fail[ure] to take advantage of [the court’s] generosity” and avail

himself of the multiple chances he was given to go forward with his case, that lesser

sanctions would not have “spur[red] this litigation to its just completion.” Mingo,

864 F.2d at 103; R1-30 at 2. In light of the fact that Calloway was warned that his

failure to respond to Perdue’s motion would result in dismissal of his complaint

 We find no merit to Calloway’s contention on appeal that it was not he, “but the 2

confusion as to who exactly represented [him] that was the cause of the delays.” Appellant’s

Brief at 10. While the record indicates that the attorneys were confused as to Calloway’s

representation, Calloway himself was aware that he was not represented by counsel, and acted in

a manner consistent with a litigant proceeding pro se. 

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with prejudice, yet still refused to pursue his case, the district court’s determination

that lesser sanctions would be futile was not unreasonable.

III. CONCLUSION

Calloway appeals the district court’s dismissal of his complaint with

prejudice. We conclude from the record that the court acted within the bounds of

its discretion, particularly given that Calloway was personally responsible for the

delays in his case.

AFFIRMED.

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