IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION

MELINDA DENISH, ) ) Plaintiff, ) ) vs. ) Civil Action No. 2:22-00076-KD-MU ) FOREMOST INSURANCE COMPANY, ) ) Defendant. )

ORDER Melinda Denish’s breach of contract and bad faith action against Foremost Insurance Company is before the Court upon sua sponte review of the docket. On June 15, 2023, Foremost filed a motion for summary judgment (doc. 15). Denish was ordered to file a response by July 6, 2023 (doc. 16). Soon after the order to respond was entered, Denish’s counsel moved to withdraw (doc. 17). The motion was granted, and Denish was given until August 4, 2023, to find new counsel (doc. 20). Counsel mailed a copy of Denish’s file to her on July 10, 2023, and the copy was delivered on July 11, 2023. Counsel also emailed a copy to Denish (doc. 21). As of August 22, 2023, no attorney had filed a notice of appearance on behalf of Denish and she had not filed a pro se response to the motion for summary judgment. The Court ordered Denish to show cause by September 11, 2023, why this action should not be dismissed for failure to prosecute (doc. 22). The Court also explained that if Denish did not want to pursue this action, she may file a written request for dismissal. See Fed. R. Civ. P. 41(a)(2) (The Rule provides for voluntary dismissal of an action “at the plaintiff’s request only by court order, on terms that the court considers proper.”). The Court also gave Denish notice of the Court’s intent to dismiss this action without prejudice for failure to prosecute, in accordance with S.D. Ala. Civ. L.R. 41(c), Fed. R. Civ. P. 41(b), and its inherent authority to manage its docket, if she did not respond to the Court’s Order. The Court explained as follows: The Court of Appeals for the Eleventh Circuit has held that the “district court may sua sponte dismiss a case under the authority of either Rule 41(b) or the court’s inherent power to manage its docket.” Johnson v. DuBose,

, 928 n.1 (11th Cir. 2020) (citing Betty K Agencies, Ltd. v. M/V Monada,

(11th Cir. 2005) and noting S.D. Ala. Civ. L.R. 41(c)); Link v. Wabash R.R.,

,

(1962) (Rule 41(b) does not restrict the court’s inherent authority to dismiss an action sua sponte for failure to prosecute). Additionally, this Court’s Civil Local Rule 41(c), captioned “Dismissal for Lack of Diligence”, provides that “[w]henever it appears that the Plaintiff is not diligently prosecuting the action, the Court upon notice may dismiss the action for failure to prosecute, in accordance with applicable law.” S.D. Ala. Civ. L.R. 41(c). Also, to “employ fair procedure, a district court must generally ‘provide the plaintiff with notice of its intent to dismiss or an opportunity to respond.’” Tazoe v. Airbus S.A.S.,

(11th Cir. 2011) (citation omitted).

(Doc. 22, p. 2). The Clerk mailed a copy of the Order by certified mail return receipt requested and by first class mail to Denish at the following address provided by her counsel: Melinda Denish 274 Gwen Road Pine Hill, Alabama 36769

(Id).

The Order mailed by first class mail was returned with the envelope marked:

Forward time Exp Rtn to Send Denish 270 Gwen Rd Pine Hill Al 36769-2805

(Doc. 23).

The Order mailed by certified mail was returned with the envelope marked:

Forward time Exp Rtn to Send Denish 270 Gwen Rd Pine Hill Al 36769-2805

(Doc. 23-1). On August 30, 2023, the Order was remailed to Denish, by first class mail and certified mail, at the address on the expired forwarding order: 270 Gwen Rd., Pine Hill, Alabama 36769- 2805. On September 26, 2023, the certified mail was returned unclaimed (doc. 24). To date, October 3, 2023, the first class mail has not been returned. Also, Denish has not responded to the Order, has not responded to the motion for summary judgment, and no counsel has appeared on her behalf. Accordingly, pursuant to the Court’s inherent authority to manage its docket, Fed. R. Civ. P. 41(b) and S.D. Ala. Civ. L.R. 41(c), this action is dismissed without prejudice for failure to prosecute. The Clerk is directed to mail a copy of this Order to Denish by first class mail and certified mail. DONE and ORDERED this the 3rd day of October 2023.

s/ Kristi K. DuBose KRISTI K. DuBOSE UNITED STATES DISTRICT JUDGE