Case: 16-11101   Date Filed: 04/20/2017   Page: 1 of 8


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 16-11101
                          Non-Argument Calendar
                        ________________________

                     D.C. Docket No. 1:15-cv-24686-UU



SUSAN LEVY,

                                                            Plaintiff-Appellant,

                                 versus

NCL (BAHAMAS), LTD.,
d.b.a. Norwegian Cruise Lines,
d.b.a. NCL Getaway, NCL Corporation, LTD,

                                                           Defendant-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                               (April 20, 2017)

Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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       Susan Levy, proceeding pro se, appeals the district court’s dismissal of her

personal injury complaint against NCL (Bahamas), Ltd. and parent company NCL

Corporation, Ltd. (collectively, “Norwegian”) and denial of her two motions for

relief from that dismissal under Federal Rule of Civil Procedure 60(b). On appeal,

Levy argues that the district court abused its discretion when it dismissed her

complaint and denied her Rule 60(b) motions. After careful review, we vacate and

remand for further proceedings.1 Even assuming the district court was within its

discretion to dismiss Levy’s complaint, it abused its discretion by denying Levy

relief from the dismissal order under Rule 60(b).2

                                                 I.

       Levy sued Norwegian in the Southern District of Florida in December 2015

for injuries she sustained almost a year prior aboard one of the company’s cruise

ships. The district court ordered Levy to serve and file returns of service on all

defendants 14 days prior to the March 4, 2016 initial planning and scheduling

conference, which would have been February 19, 2016. On January 13, more than


       1
        Because we vacate and remand, Levy’s pending “Motion for Leave to Supplement the
Appellate Record and/or to Take Judicial Notice of Certain Facts” is DENIED as moot.
       2
          Levy also argues that the forum selection clause in her passenger ticket contracts should
be voided and the case should be transferred to the Southern District of New York. The district
court expressly declined to address these issues; thus, they are not properly before us at this time.
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1267 (11th Cir. 2007) (“When the district
court does not address an issue, the better course of action often is to reverse the order of the
district court and remand.”). The district court may wish to entertain these arguments on
remand.

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a month before this deadline, the district court entered an order to show cause by

January 20 why service had not been perfected. The order stated that failure to

comply with the show cause order would result in dismissal of the complaint. On

January 22, when Levy had not responded to the show cause order, the district

court dismissed the complaint. The court’s dismissal order failed to specify

whether the dismissal was with or without prejudice.

      Levy moved for relief from the order of dismissal under Rule 60(b)(1) of the

Federal Rules of Civil Procedure. See Fed. R. Civ. P. 60(b)(1) (providing that a

court may relieve a party from a final judgment, order, or proceeding if it arose

from mistake, inadvertence, surprise, or excusable neglect). In support of her

motion, Levy averred in an affidavit that she: (1) had properly commenced her suit

by requesting a waiver of service from Norwegian; (2) had never received a copy

of the order to show cause, either through a clerical error by the clerk or a failure

of the Post Office to deliver the order; (3) lacked a Case Management/Electronic

Case Files (“CM/ECF”) account and therefore could not receive email notifications

of orders from the court; and (4) had not anticipated the show cause order because,

under the court’s earlier order, she was not required to perfect service until

February 19. She also attached to the motion a copy of a signed waiver of service

from Norwegian.




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      The district court denied without prejudice Levy’s motion, expressing doubt

about the veracity of her statement that she received all of the court’s orders except

the show case order. The court ordered Levy to obtain access to CM/ECF and

refile a Rule 60(b) motion for relief by February 19, 2016. On February 19, Levy

filed a new Rule 60(b) motion. She asserted that she had made a good faith

attempt to obtain a CM/ECF account but that the clerk’s office had not responded

to her request. She also argued that she was entitled to relief from the order of

dismissal because, even had she been sent a copy of the show cause order, the

order provided her only seven days to show cause, and this deadline failed to

account for the fact that mail—the method of filing set forth in the rules governing

pro se proceedings—took six days to be delivered from Florida to New York. In

addition, Levy asked that her case be transferred to the Southern District of New

York and noted that her claim was accompanied by a one year statute of limitations

that began to run in December 2014, nearly a year before this suit was filed in

December 2015.

      The district court again denied Levy’s motion. The court stated that the

motion was “procedurally improper” because Levy did not need to have her case

reinstated and then transferred to the Southern District of New York; rather,




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“because this case was dismissed without prejudice,” she could “simply re-file her

case in the Southern District of New York.” Doc. 18 at 2.3 This is Levy’s appeal.

                                                 II.

      The decision to dismiss for want of prosecution lies within the trial court’s

discretion and can be reversed only for an abuse of discretion. McKelvey v. AT&T

Techs., Inc., 789 F.2d 1518, 1520 (11th Cir. 1986). We also review the denial of a

motion for relief from judgment under Fed. R. Civ. P. 60(b) for an abuse of

discretion. Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 849 n.2 (11th

Cir. 1996). The abuse of discretion standard of review requires us to affirm unless

we find that the district court made a clear error of judgment or applied the wrong

legal standard. Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286 (11th

Cir. 2009).

                                                 III.

      Levy contends the district court abused its discretion by dismissing her

complaint and denying her two motions for relief from judgment under Rule 60(b).

For the reasons that follow, because we agree that the district court abused its

discretion in denying relief under Rule 60(b), we need not address the initial

dismissal of Levy’s complaint.




      3
          “Doc.” refers to the numbered entry onto the district court’s docket in this case.

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      If a plaintiff fails to prosecute or comply with a court order, the court may

sua sponte dismiss the case. Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d
1333, 1337 (11th Cir. 2005); see Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.

2000) (noting that a court generally is within its discretion to dismiss based on a

litigant’s disregard of an order, especially when the litigant has been forewarned).

Unless the court’s dismissal order states otherwise, such a dismissal operates as an

adjudication on the merits. Fed. R. Civ. P. 41(b). Moreover, even if a dismissal

order expressly states that the dismissal is without prejudice, such a dismissal

operates as one with prejudice if it has the effect of precluding the plaintiff from

refiling her claim due to the running of a statute of limitations. Justice v. United

States, 6 F.3d 1474, 1482 & n.15 (11th Cir. 1993).

      Dismissals with prejudice are drastic remedies that are to be used only where

a lesser sanction would not better serve the interests of justice. Justice, 6 F.3d at

1482 n.15. Thus, dismissals with prejudice are inappropriate unless the district

court finds both that a clear record of delay or willful misconduct exists and that

lesser sanctions are inadequate to correct such conduct. Zocaras v. Castro, 465
F.3d 479, 483 (11th Cir. 2006) (involving sanctions under Fed. R. Civ. P. 41(b)).

Mere negligence is insufficient to justify a finding of delay or willful misconduct.

Id. We previously have held that cutting off a plaintiff’s potentially meritorious




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action is an unduly harsh sanction for failing to prosecute her claim or comply with

a court order, absent willful or contumacious conduct. See Justice, 6 F.3d at 1481.

       Here, even assuming the district court was within its discretion to dismiss

Levy’s complaint based on the information it had at the time (that Levy had failed

to timely respond to the order to show cause), the court’s subsequent denial of

relief under Rule 60(b) amounted to an abuse of discretion. The district court’s

dismissal of Levy’s complaint, which effectively was with prejudice, was

unjustified under the circumstances.

       First, the district court’s dismissal of Levy’s complaint was with prejudice.

Under Rule 41(b), the district court’s dismissal order—which failed to state

whether the dismissal was with or without prejudice—operated as a dismissal with

prejudice. Even if the district court’s later clarification that its intent was to

dismiss without prejudice could override the dictates of Rule 41(b), the court’s

dismissal effectively was with prejudice because refiling the complaint would

cause Levy’s new claim to be barred by the statute of limitations. 4 See Justice, 6
F.3d at 1482 & n.15.

       Second, this with-prejudice dismissal was not, as required, accompanied by

a finding of delay or willful misconduct and a determination that lesser sanctions


       4
        For this reason, the district court was incorrect when, in its order denying Levy’s second
Rule 60(b) motion, it stated that Levy could simply refile her claim in the Southern District of
New York.

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would be inadequate. See Zocaras, 465 F.3d at 483. Indeed, Levy’s failure to

respond to the show cause order was, at most, the result of negligence. See id.

(noting that mere negligence is insufficient to support dismissal with prejudice).

Levy provided evidence that she was actively prosecuting her case at the time of

dismissal by seeking and obtaining a waiver of service from Norwegian prior to the

February 19 deadline and within the 90 day time limit for service set out in Rule

4(m) of the Federal Rules of Civil Procedure, and neither the district court nor

Norwegian identified any reason to believe that Levy was willfully delaying the

proceedings. See Zocaras, 465 F.3d at 483. Indeed, to the extent there was any

delay attributable to Levy—by, for example, her failure to obtain CM/ECF access

to receive electronic court notifications—she explained in detail her legitimate

reasons for it. The district court had no principled reason to reject these

uncontroverted explanations. By failing to take into account Levy’s explanations

and entering a dismissal with prejudice based on conduct amounting, at worst, to

negligence, the district court abused its discretion in denying Levy Rule 60(b)

relief. See Rance, 583 F.3d at 1286.

      Therefore, we vacate the orders denying Levy’s motions for relief from

judgment and remand for further proceedings.

      VACATED AND REMANDED.




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