[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-14925

Non-Argument Calendar

________________________

D.C. Docket No. 2:16-cv-01650-KOB

TIMOTHY CONNER, 

 Plaintiff - Appellant,

versus

SAMMY’S GENTLEMEN’S CLUB, 

a.k.a. SJB Corporation, 

 Defendant - Appellee,

MARIO ROSS,

 Defendant.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

________________________

(July 2, 2018)

Before MARTIN, JULIE CARNES, and HULL, Circuit Judges.

PER CURIAM: 

Case: 17-14925 Date Filed: 07/02/2018 Page: 1 of 6 
2

Timothy Conner appeals the district court’s refusal to reinstate his case after 

it was dismissed without prejudice due to his repeated failure to prosecute and his 

failure to comply with a court order. He argues his failures resulted from

excusable neglect and the district court abused its discretion in denying him relief 

under Federal Rule of Civil Procedure 60(b). After careful consideration, we 

affirm. 

I.

On June 17, 2016, Conner filed this case alleging a bouncer at Sammy’s 

Gentlemen’s Club “inexplicably shoved him” as he was escorting Conner out of 

the club, causing Conner “to lose his balance and fall down an entire flight of brick 

steps striking his head on the concrete.” Conner said he suffered injuries to his 

back, head, neck, and nervous system. He sued Sammy’s for negligence, 

wantonness, and assault and battery.1

 

On January 25, 2017, the parties met and agreed to have discovery 

completed by August 31. On March 9, the district court entered a scheduling order 

extending the parties’ agreed-upon discovery deadline to September 5. The court 

added its expectation that “all critical discovery (i.e., discovery necessary to 

 1 Conner also sued the bouncer. On November 22, 2016, the district court noted Conner

had failed to serve the bouncer with process within 90 days of filing the lawsuit and ordered 

Connor to show good cause why the action against the bouncer shouldn’t be dismissed for failure 

to prosecute. Conner didn’t file a response, and on March 9, 2017, the district court dismissed 

the bouncer under Federal Rule of Civil Procedure 4(m). 

Case: 17-14925 Date Filed: 07/02/2018 Page: 2 of 6 
3

determine whether the case should be settled such as parties’ depositions) will take 

place before” August 24, when a joint status report was due. 

On July 14, Sammy’s filed a motion to compel initial disclosures and 

discovery responses. Sammy’s said its attorney served Conner with interrogatories 

and requests for documents on May 17; sent a letter requesting a response on June 

22; and spoke twice on the phone with Conner’s attorney since June 22nd, yet

Conner failed to respond to the discovery requests. Sammy’s asked the court to 

order Conner to file discovery responses by July 24. The court granted the motion, 

but extended Conner’s deadline to July 31. Conner did not file any discovery

responses. 

On August 3, Sammy’s moved to dismiss. It argued Conner’s failure to 

comply with the court’s order compelling discovery responses showed a “willful 

refusal to engage in the discovery process or obey the Court’s order” and asked the 

court to dismiss the case with prejudice pursuant to Federal Rule of Civil 

Procedure 37(b). Conner’s attorney responded that Conner had to travel a lot for 

work and that the attorney hadn’t been able to get in touch with him by phone or 

email since mid-May. Instead of dismissing the case, Conner’s attorney asked the 

court to stay discovery for 90 days while he tried to locate his client. Sammy’s 

filed a reply, arguing it had already been prejudiced by the delay. Sammy’s said it 

incurred “substantial additional legal fees” trying to defend this action without 

Case: 17-14925 Date Filed: 07/02/2018 Page: 3 of 6 
4

Conner’s participation in discovery. It argued 90 days was excessive and Conner’s 

“pattern of conduct amount[ed] to want of prosecution.” 

On August 23, while the motion to dismiss was pending, the parties filed a 

joint status report. The parties stated “[d]iscovery ha[d] been at a standstill as a 

result of Plaintiff’s failure to communicate with his counsel” and their “ability to 

discuss settlement prospects [had] been frustrated by Plaintiff’s absence.” 

Two days later the district court granted the motion to dismiss under Federal 

Rules of Civil Procedure 37(b) and 41(b). The court determined Conner “ha[d] 

both failed to prosecute this case and to comply with this court’s July 20 order to 

provide discovery, and his failures to act ha[d] prejudiced Defendant already.” 

The court denied Conner’s attorney’s request for a 90-day stay and dismissed the 

case without prejudice. 

A month later, Conner moved to reinstate his case. Conner explained that 

the court’s dismissal without prejudice operated as a dismissal with prejudice 

because the statute of limitations had run on his claims. He argued his failures to 

provide discovery responses and to follow the court’s July 20 order did not warrant 

the sanction of dismissal as those failures were “wholly attributable to excusable 

neglect.” In an attached declaration, Conner said he had been traveling for work

since he filed the lawsuit; he had intermittent cell phone service; did not own a 

laptop computer; and did not have regular affordable internet service while 

Case: 17-14925 Date Filed: 07/02/2018 Page: 4 of 6 
5

traveling. He explained he was only recently able to talk to his attorney and asked 

the district court to reinstate his case under Rule 60(b). He attached completed 

discovery responses and said he was “ready to prosecute” his case. 

Sammy’s responded that Conner had posted pictures and comments on

Facebook at least 224 times since he filed this lawsuit, which showed he did have 

phone and internet service contrary to his declaration. It attached a copy of all the 

date-stamped posts and a declaration authenticating them. Sammy’s argued 

Conner’s failure to talk to his attorney “at least as frequently as he was able to 

connect with his friends on Facebook” was not excusable neglect. Sammy’s also 

argued Conner’s false declaration shows he wasn’t acting in good faith and asked 

the district court to deny Conner’s motion to reinstate. 

The district court denied Conner’s motion. The court determined the 

Facebook posts contradicted Conner’s claim that he wasn’t able to talk to his 

attorney because he didn’t have phone or internet service. And the court 

determined that reinstatement would cause prejudice to Sammy’s based on its 

earlier finding that Conner’s failures to prosecute and to comply with the court’s 

order had already caused Sammy’s prejudice. This appeal followed. 

II.

A district court’s denial of relief under Rule 60(b) is reviewed for abuse of 

discretion. BUC Int’l Corp. v. Int’l Yacht Council Ltd., 517 F.3d 1271, 1275 (11th 

Case: 17-14925 Date Filed: 07/02/2018 Page: 5 of 6 
6

Cir. 2008). Federal Rule of Civil Procedure 60(b) allows a court to “relieve a party 

. . . from a final judgment” for various reasons, including “excusable neglect.” 

Fed. R. Civ. P. 60(b)(1). Relief for excusable neglect is due if the “failure to 

comply with a filing deadline is attributable to negligence.” Pioneer Inv. Servs. 

Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 394, 113 S. Ct. 1489, 1497 

(1993). “[T]he determination is at bottom an equitable one, taking account of all 

relevant circumstances surrounding the party’s omission,” which include “the 

danger of prejudice to the [opposing party], the length of the delay and its potential 

impact on judicial proceedings, the reason for the delay, including whether it was 

within the reasonable control of the movant, and whether the movant acted in good 

faith.” Id. at 395, 113 S. Ct. at 1498. 

At issue in this case is not whether dismissal was appropriate in the first 

place, but whether relief from dismissal was warranted based on Conner’s alleged 

inability to communicate with his attorney. We think not. The Facebook posts 

belied Conner’s claim that he had intermittent cell phone service and irregular 

access to affordable internet service while traveling for work and thus could not 

communicate with his attorney. On this record, the district court did not abuse its 

discretion in denying relief. See id.; BUC Int’l Corp., 517 F.3d at 1275.

AFFIRMED.

Case: 17-14925 Date Filed: 07/02/2018 Page: 6 of 6