IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

FELECIA L. ARSO, o/b/o : 

IESHA ARSO, 

 : 

 Plaintiff, 

 : 

vs. CA 10-0036-KD-C 

 : 

MICHAEL J. ASTRUE, 

Commissioner of Social Security, : 

 Defendant. 

REPORT AND RECOMMENDATION

 This cause is before the undersigned for issuance of a report and recommendation, 

pursuant to 28 U.S.C. § 636(b)(1)(B), on the complaint, as amended (see Docs. 1 & 4), and the 

defendant’s motion to dismiss (Doc. 19). Upon consideration of the contents of the defendant’s 

motion, as well as all other pertinent materials in this file, the undersigned recommends that the 

Court GRANT the defendant’s motions to dismiss and DISMISS this action based upon the 

failure of plaintiff and plaintiff’s counsel to prosecute and abide by the orders of this Court (see 

Docs. 8 & 20). 

FINDINGS OF FACT

 1. Plaintiff initially filed this social security action in this Court on January 20, 2010, 

seeking child insurance benefits. (Doc. 1) Because the undersigned was unclear regarding 

whether plaintiff was represented by counsel, an order was entered on January 25, 2010 requiring 

Melinda Maddox, Esquire to either append her signature to the complaint filed January 20, 2010 

or to file a new complaint containing her signature. (Doc. 3) In addition, plaintiff was ordered to 

file a motion to proceed without prepayment of fees on this Court’s form. (Id.) Plaintiff’s 

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counsel, Ms. Maddox, filed an amended complaint on February 1, 2010 (Doc. 4) and, as well, a 

motion to proceed without prepayment of fees on the proper form (Doc. 5). Plaintiff’s IFP 

motion was granted (Doc. 6) and summons were issued on February 8, 2010 (Doc. 7). 

 2. This Court’s standing scheduling order for social security cases was entered on 

February 8, 2010. (Doc. 8) That order provides, in part, that “[w]ithin thirty (30) days of the 

filing of the transcript and answer, counsel for plaintiff must file, and serve on opposing counsel, 

a Brief and Fact Sheet which lists the specific errors upon which plaintiff seeks reversal of the 

Commissioner’s decision (see sample Brief and Fact Sheet, Attachments A and B).” (Id. at ¶ 3) 

 3. The defendant filed his answer, along with a transcript of administrative 

proceedings, on May 3, 2010 (Docs. 14-15) thereby making plaintiff’s brief and fact sheet due on 

June 2, 2010 (compare Doc. 14 with Doc. 8, ¶ 3). Because plaintiff’s counsel failed to timely file 

the brief and fact sheet, the undersigned entered an order setting the case for oral argument and 

requiring plaintiff to file her brief and fact sheet not later than June 16, 2010. (Doc. 16) 

 4. On June 13, 2010, plaintiff filed a one-page document entitled “Plaintiff’s Fact 

Sheet” (Doc. 17) but because that document was unsigned (see id. at 2), counsel filed an 

identical signed pleading three days later (Doc. 18). Because this pleading cannot be regarded as 

either a fact sheet or brief as contemplated by this Court’s standing scheduling order in social 

security cases (compare id. with Doc. 8, Attachments A & B), the defendant filed a motion to 

dismiss this action with prejudice on July 9, 2010 (Doc. 19). “Although Plaintiff has filed two 

versions of her Fact Sheet, she ha[s] not complied with the Court’s June 3, 2010, order as 

Plaintiff has failed to file a Brief. . . . Plaintiff has failed to comply with the Court’s scheduling 

order and, as a result, has failed to prosecute this case. Under the circumstances, it is appropriate 

for the Court to dismiss the case.” (Id. at ¶¶ 7 & 9) 

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 5. By order dated July 12, 2010, the undersigned took defendant’s motion to dismiss 

under submission and ordered plaintiff to direct a response to that motion and also to “request 

leave to file a brief and fact sheet and attach those documents to [a] motion for leave to file outof-time.” (Doc. 20, at 1-2) The Magistrate Judge specifically informed counsel for plaintiff that 

the fact sheet attached to the “motion for leave to file brief and fact sheet out-of-time should 

track the sample fact sheet attached to the Social Security Scheduling Order issued in this case 

on February 8, 2010 (see Doc. 8, Exhibit B) and her brief should follow the outline set forth in 

the sample brief attached to the scheduling order (see id., Attachment A).” (Id. at 2) Finally, the 

undersigned specifically informed plaintiff, and plaintiff’s counsel, that failure to timely respond 

to the order, by July 30, 2010, would “result in entry of a report and recommendation that this 

cause be dismissed for failure to prosecute and obey the orders of this Court.” (Id. at n.1, citing 

Fed.R.Civ.P. 41(b)) 

CONCLUSIONS OF LAW

 1. Rule 41(b) of the Federal Rules of Civil Procedures provides that “[i]f the 

plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move 

to dismiss the action or any claim against it.” Id.; see also Environmental Biotech, Inc. v. Sibbitt 

Enterprises, Inc., 2007 WL 2993997, *2 (M.D. Fla. Oct. 11, 2007) (“The authority of a federal 

trial court to dismiss a plaintiff’s action with prejudice because of his failure to prosecute cannot 

seriously be doubted. The power to invoke this sanction is necessary in order to prevent undue 

delays in the disposition of pending cases and to avoid congestion in the calendars of the District 

Courts.”). Rule 41(b) is a “‘housekeeping measure’ which allows the Court to manage its docket, 

further the policy of expeditious resolution of litigation, and prevent prejudice to a defendant 

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from delay.” Stolt-Nielsen, Inc. v. Zim Israel Navigation Co., Ltd., 879 F.Supp. 1223, 1225 (S.D. 

Ga. 1994) (citation omitted), vacated on other grounds, 67 F.3d 314 (11th Cir. 1995). 

 2. Because a Rule 41(b) dismissal with prejudice is an extreme sanction, it should 

only be ordered “‘where there is a clear record of “willful” contempt and an implicit or explicit 

finding that lesser sanctions would not suffice.’” Welch v. Comcar Industries, 139 Fed.Appx. 

138, 139, 2005 WL 1189626, *1 (11th Cir. 2005), citing Gratton v. Great American

Communications, 178 F.3d 1373, 1374 (11th Cir. 1999). The Eleventh Circuit has indicated that 

this sanction is appropriate only when “‘(1) a party engages in a clear pattern of delay or willful 

contempt (contumacious conduct1

); and (2) the district court specifically finds that lesser 

sanctions would not suffice.’” Betty K. Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1338 

(11th Cir. 2005) (citations omitted; footnote added); see also McKelvey v. AT&T Technologies, 

Inc., 789 F.2d 1518, 1520 (11th Cir. 1986) (“[T]he severe sanction of dismissal-with prejudice or 

the equivalent-should be imposed ‘only in the face of a clear record of delay or contumacious 

conduct by the plaintiff.’”). This harsh sanction “is thought to be more appropriate in a case 

where a party, as distinct from counsel, is culpable.” Betty K. Agencies, Ltd., supra, 432 F.3d at 

1338 (citation omitted). 

 3. Although the undersigned cannot find that the plaintiff has engaged in a course of 

contumacious conduct, it is clear that counsel for plaintiff has engaged in a course of 

contumacious conduct such that no sanction other than the ultimate one of dismissal with 

prejudice will suffice. In this regard, plaintiff’s counsel not only failed to timely file a brief and 

 1

 “Contumacious conduct warranting dismissal for failure to prosecute includes 

such activities as ‘protracted foot-dragging,’ ‘defiance of court orders,’ ‘ignoring warnings,’ and 

‘wasteful expenditure of the court’s time.’” Hudson v. Cardwell Corp., 2006 WL 2135791, *2 

(S.D. Ala. July 27, 2006) (citations omitted). 

Case 1:10-cv-00036-KD-C Document 21 Filed 08/05/10 Page 4 of 6
fact sheet within the time constraints set out in the scheduling order (compare Doc. 8 with 

Docket Sheet) but, as well, when she ultimately filed a “Fact Sheet” that pleading was neither a 

brief or fact sheet contemplated by the Court’s scheduling order (compare Doc. 18 with Doc. 8, 

Exhibits A & B). Finally, but most importantly, plaintiff’s counsel failed to file a response to the 

defendant’s motion to dismiss and a motion for leave to file plaintiff’s brief and fact sheet out-oftime, as ordered (Doc. 20). The failure of counsel to respond to the undersigned’s order of July 

13, 2010 (Doc. 20) cannot be overlooked since this order informed counsel in some detail how to 

overcome the deficiencies in the case and, as well, informed plaintiff and her attorney that the 

failure to file a timely response would result in entry of this report and recommendation (see id.). 

 4. The orders of this Court would be rendered meaningless if the undersigned 

charted a path recommending the denial of the defendant’s motion to dismiss. Accordingly, the 

Magistrate Judge is constrained to recommend that this action be dismissed with prejudice given 

the contumacious conduct of plaintiff’s counsel. 

CONCLUSION

 The Magistrate Judge recommends that the defendant’s motions to dismiss this case 

(Doc. 19) be GRANTED and that the plaintiff’s complaint be DISMISSED WITH 

PREJUDICE, pursuant to Fed.R.Civ.P. 41(b), for failure to prosecute and abide by the orders of 

this Court. 

 The instructions which follow the undersigned’s signature contain important information 

regarding objections to the report and recommendation of the Magistrate Judge. 

DONE this the 5th day of August, 2010. 

 s/WILLIAM E. CASSADY 

 UNITED STATES MAGISTRATE JUDGE 

 

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND 

 RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND 

 FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific written objections with the Clerk of this 

court. Failure to do so will bar a de novo determination by the district judge of anything in the 

recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 

U.S.C. ' 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 

F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for challenging the findings and 

recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), 

which provides that: 

A party may object to a recommendation entered by a magistrate judge in a dispositive 

matter, that is, a matter excepted by 28 U.S.C. ' 636(b)(1)(A), by filing a >Statement of 

Objection to Magistrate Judge=s Recommendation= within ten days2

 after being served 

with a copy of the recommendation, unless a different time is established by order. The 

statement of objection shall specify those portions of the recommendation to which 

objection is made and the basis for the objection. The objecting party shall submit to the 

district judge, at the time of filing the objection, a brief setting forth the party=s arguments 

that the magistrate judge=s recommendation should be reviewed de novo and a different 

disposition made. It is insufficient to submit only a copy of the original brief submitted 

to the magistrate judge, although a copy of the original brief may be submitted or referred 

to and incorporated into the brief in support of the objection. Failure to submit a brief in 

support of the objection may be deemed an abandonment of the objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district 

judge's order or judgment can be appealed. 

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. ' 1915 and 

FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are 

adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay 

the fee for a transcript, is advised that a judicial determination that transcription is necessary is required 

before the United States will pay the cost of the transcript.

 2

 Effective December 1, 2009, the time for filing written objections was extended to 

A14 days after being served with a copy of the recommended disposition[.]@ Fed.R.Civ.P. 

72(b)(2). 

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