Gesuclais Brutus v. IRS, Bank of America, Hertz Claim Mgt, Residential Funding Corporation , 393 F. App'x 682 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10840 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 23, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:10-cv-00088-GAP-DAB
GESUCLAIS BRUTUS,
lllllllllllllllllllll Plaintiff - Appellant,
versus
INTERNAL REVENUE SERVICE,
BANK OF AMERICA,
HERTZ CLAIM MANAGEMENT,
RESIDENTIAL FUNDING CORPORATION,
lllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 23, 2010)
Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Gesuclais Brutus, proceeding pro se, appeals the district court’s dismissal
without prejudice of his civil complaint raising federal claims under the Internal
Revenue Code (“IRC”) and the Real Estate Settlement Procedures Act
(“RESPA”), and a state-law personal injury claim against (1) the Internal Revenue
Service (“IRS”), (2) the Residential Funding Corporation, (3) Bank of America,
and (4) Hertz Claim Management. On appeal, construing his brief liberally,
Brutus argues that the district court abused its discretion by dismissing his
complaint under Fed.R.Civ.P. 41(b) for failure to comply with court orders. He
also reiterates the substantive arguments in his complaint.
While we liberally construe pro se pleadings, Alba v. Montford, 517 F.3d
1249, 1252 (11th Cir. 2008), this obligation “is not the equivalent of a duty to
re-write [a complaint] for [the plaintiff],” Snow v. DirecTV, Inc., 450 F.3d 1314,
1320 (11th Cir. 2006) (quotation omitted). In addition, we may affirm the district
court on any ground supported by the record. Trotter v. Sec’y, Dep’t of Corr., 535
F.3d 1286, 1291 (11th Cir.), cert. denied, 129 S. Ct. 767 (2008). “Before we
consider the merits of [an] appeal, we must address [the] threshold issue of
jurisdiction.” Jackson v. Cintas Corp., 425 F.3d 1313, 1316 (11th Cir. 2005).
We review a dismissal under Fed.R.Civ.P. 41(b) for abuse of discretion.
Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374 (11th Cir. 1999).
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“Discretion means the district court has a range of choice, and that its decision will
not be disturbed as long as it stays within that range and is not influenced by any
mistake of law.” Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006)
(quotations omitted).
Rule 41(b) provides that, “[i]f the plaintiff fails . . . to comply with . . . a
court order, a defendant may move to dismiss the action or any claim against it.”
Fed.R.Civ.P. 41(b). In interpreting this provision, we have held that the district
court may sua sponte dismiss a case under Rule 41(b). Betty K Agencies, Ltd. v.
M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005). Sua sponte dismissal is
appropriate “to prevent undue delays in the disposition of pending cases and to
avoid congestion in the calendars of the District Court.” Equity Lifestyle Props.,
Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1240 (11th Cir.
2009) (quotation omitted).
In order to justify dismissal with prejudice as a sanction under Rule 41(b),
“[t]here must be both a clear record of willful conduct and a finding that lesser
sanctions are inadequate.” Zocaras, 465 F.3d at 483. This is true because
dismissal with prejudice is “a sanction of last resort, applicable only in extreme
circumstances.” Id. (quotation omitted). Even so, a dismissal under Rule 41(b)
“upon disregard of an order, especially where the litigant has been forewarned,
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generally is not an abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837
(11th Cir. 1989). Moreover, we normally apply “a less stringent standard of
review to a . . . dismissal of a suit without prejudice, because the plaintiff would be
able to file his suit again.” Boazman v. Econ. Lab., Inc., 537 F.2d 210, 212-13
(5th Cir. 1976). When a dismissal is without prejudice under Rule 41(b) and the
plaintiff elects not to amend, we treat the order as an adjudication on the merits.
Robinson v. Fed. Nat’l Mortgage Ass’n, 673 F.2d 1247, 1249 (11th Cir. 1982).
Assuming arguendo that Brutus has preserved his challenge to the district
court’s ruling, any claim that the court abused its discretion by dismissing his
federal claims under Rule 41(b) lacks merit. By filing the instant complaint
without permission, Brutus violated an order and a permanent injunction – which
he has not challenged – that the court previously entered in light of his history of
filing numerous incomprehensible lawsuits, and which required him to obtain
leave before filing any lawsuit and to accompany any submission with a motion
for leave to file. Because the court reminded him of these restrictions on multiple
prior occasions, and because the dismissal without prejudice allowed him to seek
permission to refile, the court did not abuse its discretion by dismissing the federal
claims in the instant complaint for failure to comply with court orders.
AFFIRMED.
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