Marcia v. Koshy

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 25-14414-CIV-MAYNARD1
MARCIA PEARSON,
Plaintiff,
v.
SUNU KOSHY, Postmaster, United
States Postal Service,
Defendant.
______________________________/
REPORT AND RECOMMENDATION
THIS CAUSE is before me upon a sua sponte review of the record. 	Plaintiff has
not taken affirmative steps to continue prosecuting her claims or timely complied with my
prior Orders requiring her to pay the filing fee. 	I therefore recommend that this case be
DISMISSED WITHOUT PREJUDICE for failure to prosecute and failure to comply with
Court Orders.
On November 19, 2025, Plaintiff Marcia Pearson, proceeding pro se, commenced
this action by filing a complaint against a Postmaster of the United States Postal Service
(USPS) based in New York. DE 1. The form complaint generally alleges mismanagement
1 This non-prisoner pro se civil case was assigned to the undersigned United States Magistrate Judge pursuant
to Administrative Order 2025-11. See Administrative Order 2025-11 (S.D. Fla. Mar. 3, 2025), available at:
https://www.flsd.uscourts. gov/sites/flsd/files/adminorders/2025-11.pdf. Based on the circumstances of this
particular case, I am issuing a Report and Recommendation and will be simultaneously issuing a separate order
directing the Clerk to randomly reassign this case to a United States District Judge of this Court.
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of a USPS mail forwarding service leading Plaintiff to not receive her mail, including mail
with payments. Id.
On November 20, 2025, I issued an Order finding Plaintiff ineligible to proceed in
forma pauperis (“IFP”) without prepaying fees or costs based on her reported finances and
resources—including 	$6,500.00 	in 	monthly 	retirement 	income, 	$51,000.00 	in 	bank
accounts, and ownership of a home valued at over $445,000.00. DE 7. This Order required
Plaintiff to pay the Court’s filing fee by December 12, 2025. Id. I expressly cautioned that
failure to comply with the Order “may result in this action being dismissed without
further notice pursuant to Federal Rule of Civil Procedure 41(b) for failure to
prosecute or failure to comply with court orders.” Id. at 5 (emphasis in original). Plaintiff
did not timely pay the filing fee as required.
On December 15, 2025, I sua sponte extended the deadline for Plaintiff to pay the
Court’s filing fee by January 5, 2026. 	DE 10. 	I once again expressly cautioned that
Plaintiff’s “may result in this action being dismissed without further notice pursuant to
Federal Rule of Civil Procedure 41(b) for failure to prosecute.” Id. at 1 (emphasis in
original). This second deadline passed with no timely payment of the filing fee or any other
affirmative action by Plaintiff.
Plaintiff has neither timely paid the Court’s filing fee as required nor taken any
further action to continue pursuing her claims. Under Federal Rule of Civil Procedure 41,
“[i]f the plaintiff fails to prosecute or to comply with . . . a court order, a defendant may
move to dismiss the action. Fed. R. Civ. P. 41(b); see also McKelvey v. AT&T Techs., Inc.,
789 F.2d 1518, 1520 (11th Cir. 1986) (noting that the “decision to dismiss for want of
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prosecution lies within the trial court’s discretion”). The Eleventh Circuit has made clear
that a district court may sua sponte dismiss a case for lack of prosecution based on its own
“inherent power to manage its docket.” Betty K. Agencies, Ltd. V. M/V Monada, 432 F.3d
1333, 1337 (11th Cir. 2005).
Dismissal with prejudice for failure to prosecute “is a sanction of last resort that is to
be utilized only in extreme situations” and it “can be imposed only in the face of a clear
record of delay or contumacious conduct by the plaintiff.” 	Morewitz v. West of England
Ship Owners Mut. Prot. And Indem. Ass’n (Luxembourg), 62 F.3d 1356, 1366 (11th Cir.
1995); see also Betty K., 432 F.3d at 1337–38 (holding that dismissal with prejudice may be
imposed only when a party engages in a clear pattern of delay or willful contempt and the
district court specifically finds that lesser sanctions would not suffice). 	In contrast, a
dismissal without prejudice is not an adjudication on the merits and, therefore, courts are
afforded greater discretion in dismissing claims in this manner. 	See Coleman v. St. Lucie
Cnty. Jail, 433 F. App’x 716, 719 (11th Cir. 2011) (affirming dismissal of complaint without
prejudice for failure to prosecute).
Nearly three months have passed since Plaintiff filed her complaint. A series of prior
Court Orders have provided clear guidance and ample opportunity for Plaintiff to pay the
filing fee. Plaintiff has twice been given fair warning that her failure to respond and timely
pursue this case might lead to the case being dismissed without further notice. It appears at
this time that Plaintiff does not intend to pursue her claims. However, because there is no
clear record of delay or contumacious conduct, dismissal without prejudice for failure to
prosecute is the appropriate course. See, e.g., Riddell v. Florida, 702 F. App’x 869, 871–72
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(11th Cir. 2017) (affirming dismissal without prejudice for want of prosecution after plaintiff
failed to respond to an order directing him to show cause why the case should not be
dismissed following his failure to respond to a motion to dismiss). This dismissal would not
act as an adjudication on the merits. See Fed. R. Civ. P. 41(b) (providing that dismissal for
failure to prosecute, or for failure to comply with the Federal Rules or a court order, operates
as an adjudication on the merits “[u]nless the dismissal order states otherwise”).
RECOMMENDATION
Based 	on 	the 	foregoing, 	I 	respectfully 	RECOMMEND 	that 	this 	case 	be
DISMISSED WITHOUT PREJUDICE for failure to prosecute and failure to comply with
Court Orders.
NOTICE OF RIGHT TO OBJECT
The parties shall have fourteen (14) days from the date of being served with a copy
of this Report and Recommendation within which to file written objections, if any, with the
U.S. District Judge. See 28 U.S.C. § 636(b)(1)(C); S.D. Fla. Mag. J.R. 4(a). Failure to file
objections timely shall bar the parties from a de novo determination by the U.S. District
Judge of an issue covered in the Report and Recommendation and shall bar the parties from
attacking on appeal unobjected-to factual and legal conclusions contained in this Report and
Recommendation. 	See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985);
Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1 (2016). Conversely,
if a party does not intend to object to this Report and Recommendation, then that party
shall file a Notice of such within five (5) days of the date of this Report and
Recommendation.
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The Clerk is directed to MAIL a copy of this Order to Plaintiff at the address listed
below and enter a Notice of Compliance confirming same.
DONE AND RECOMMENDED in Chambers at Fort Pierce, Florida, this 27th day
of January, 2026.
__________________________________
SHANIEK MILLS MAYNARD
U.S. MAGISTRATE JUDGE
Copy via U.S. Mail:
Marcia Pearson, pro se
10669 SW Morning Glory Drive
Port St. Lucie, FL 34987
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