2:25-cv-14317•Koger v. Everglades Housing Group, Inc. et al
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 25-14317-CIV-MAYNARD JASMINE KOGER, Plaintiff, v. EVERGLADES HOUSING GROUP, INC., OAKS AT SHANNON’S CROSSING, LP, and RURAL NEIGHBORHOODS, INC., Defendants. ___________________________________/ REPORT & RECOMMENDATION THIS CAUSE came 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 Orders requiring her to pay the filing fee. DE 8, DE 9. I thus recommend that this case be DISMISSED WITHOUT PREJUDICE for failure to comply with Court Orders and failure to prosecute. On September 2, 2025, Plaintiff filed a pro se Complaint asserting that Defendants had violated several federal laws in terminating Plaintiff’s residential lease. DE 1. Plaintiff also filed an accompanying Motion to Proceed In Forma Pauperis (“IFP”). DE 3. On October 3, 2025, I issued an Order finding Plaintiff financially ineligible to proceed IFP and requiring her to pay the Court’s filing fee by October 17, 2025. DE 8. This Order expressly cautioned Plaintiff that her “failure to comply . . . 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 3 (emphasis in original). This deadline passed with no timely payment or other activity by Plaintiff. Case 2:25-cv-14317-AMC Document 12 Entered on FLSD Docket 12/04/2025 Page 1 of 4
2 of 4 On November 18, 2025, I issued a second Order sua sponte granting Plaintiff a limited extension of the deadline. DE 9. This Order required Plaintiff to comply by December 1, 2025. Id. at 1. I again cautioned Plaintiff that “her failure to comply . . . 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. (emphasis in original). This deadline passed with no timely payment or other activity by Plaintiff. Plaintiff has neither timely paid the Court’s filing fee nor taken any further action to pursue 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 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. Case 2:25-cv-14317-AMC Document 12 Entered on FLSD Docket 12/04/2025 Page 2 of 4
3 of 4 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). Three months have passed since Plaintiff filed her Complaint. A series of prior Court Orders—including a standard order of instructions for pro se litigants—have provided her with clear guidance and ample opportunity to pay the filing fee as required. Plaintiff has twice been given fair warning that her failure to respond and timely pursue this case could lead to this case be dismissed without further notice. It appears 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 (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 comply with Court Orders for failure to prosecute. 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 District Judge of an issue covered in the Case 2:25-cv-14317-AMC Document 12 Entered on FLSD Docket 12/04/2025 Page 3 of 4
4 of 4 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. DONE AND RECOMMENDED in Chambers at Fort Pierce, Florida, this 4th day of December, 2025. __________________________________ SHANIEK MILLS MAYNARD U.S. MAGISTRATE JUDGE Case 2:25-cv-14317-AMC Document 12 Entered on FLSD Docket 12/04/2025 Page 4 of 4
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