REPORT AND RECOMMENDATION1

MONTE C. RICHARDSON, Magistrate Judge.

THIS CAUSE is before the Court on Defendant's Motion to Dismiss (Doc. 17) filed January 5, 2012, which was referred to the undersigned (Doc. 18). In the Motion, Defendant Brooks Brothers, Inc. seeks entry of a dismissal with prejudice for Plaintiff Clarisa Lebron's failure to comply with this Court's orders and failure to prosecute. To date, Plaintiff has not filed a response;2 therefore, the Court will treat the Motion as unopposed.

I. BACKGROUND

On November 16, 2010, Plaintiff filed the instant action against Defendant for race and gender discrimination and unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq. (Doc. 1). Defendant filed its Answer on December 8, 2010 (Doc. 4) and a Case Management and Scheduling Order was issued on February 10, 2011 (Doc. 9).

On November 15, 2011, attorney Eric Jones moved to withdraw as Plaintiff's counsel indicating that Plaintiff had not returned his phone calls or letters in over a year. (Doc. 12). On November 16, 2011, the Court granted counsel's Motion and gave Plaintiff until November 30, 2011 to notify the Court as to whether she intends to proceed pro se or employ new counsel. (Doc. 13). Plaintiff failed to file a response. On December 7, 2011, this Court entered an Order requiring Plaintiff to show cause no later than December 21, 2011 as to why she failed to comply with its Order. (Doc. 15). To date, Plaintiff has not shown cause for her failure to comply with the Court's November 16, 2011 Order.

On November 21, 2011, Plaintiff failed to appear for her noticed deposition or otherwise contact Defendant's counsel regarding same. See (Doc. 17, Ex. B). Additionally, a mediation scheduled for December 5, 2011 was cancelled because neither Defendant nor the Mediator was able to contact Plaintiff.3

For the above-stated reasons, Defendant filed the instant Motion to Dismiss (Doc. 17) for failure to comply with this Court's orders and failure to prosecute, which is now ripe for judicial review.

II. ANALYSIS

Federal Rule of Civil Procedure 16(f) provides that the Court may on motion or on its own "issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii)." Rule 37(b)(2)(A)(v) authorizes the Court to dismiss the action or proceeding in whole or in part. In addition, Fed. R. Civ. P. 41(b) authorizes the Court to dismiss an action where the plaintiff "fails to prosecute or to comply with these rules or a court order." Further, Rule 3.10, Local Rules, United States District Court, Middle District of Florida states, "[w]henever it appears that any case is not being diligently prosecuted the Court may, on motion of any party or on its own motion, enter an order to show cause why the case should not be dismissed, and if no satisfactory cause is shown, the case may be dismissed for lack of prosecution."

"Dismissal with prejudice is the most severe Rule 37 sanction and is not favored." Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993) (citations omitted); see also State Exchange Bank v. Hartline, 693 F.2d 1350, 1352 (11th Cir. 1982) ("while the district court has broad powers under the Federal Rules of Civil Procedure to impose sanctions for a party's failure to abide by court orders, dismissal of an action with prejudice is a sanction of last resort, applicable only in extreme circumstances"). Dismissal with prejudice is proper only "where there is a clear record of `willful' contempt and an implicit or explicit finding that lesser sanctions would not suffice." Gratton v. Great Am. Commc'ns, 178 F.3d 1373, 1374 (11th Cir. 1999). Violations "caused by simple negligence, misunderstanding, or inability to comply" do not constitute "willfulness." In re Se. Banking Corp., 204 F.3d 1322, 1332 (11th Cir. 2000). "[D]istrict courts have discretion to decide if there is a pattern of delay or a deliberate refusal to comply with court orders or directions that justifies a sanction." United States v. Duran Samaniego, 345 F.3d 1280, 1284 (11th Cir. 2003).

As an initial matter, the Court notes that any dismissal in this case will serve as a dismissal with prejudice as the refiling of Plaintiff's Complaint may be time barred. See Powell v. Siegal, 2011 U.S. App. LEXIS 23115, 2011 WL 5574963 (11th Cir. Nov. 17, 2011) ("When a complaint is dismissed without prejudice, but a statute of limitations bars a plaintiff from refiling her complaint, the dismissal is as though it was with prejudice.") (citations omitted). "Before instituting a Title VII action in federal district court, a private plaintiff must file an [Equal Employment Opportunity Commission ("EEOC")] complaint against the discriminating party and receive statutory notice from the EEOC of [] her right to sue the respondent named in the charge." Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d 1562, 1567 (11th Cir. 1996); 42 U.S.C. § 2000e-5(f)(1). Here, the Complaint alleges that "[a]ll administrative conditions precedent . . . [have] been fulfilled." (Doc. 1, p. 9, ¶ 58). The Court assumes that the EEOC issued a right to sue letter prior to Plaintiff filing her suit and more than 90 days passed since that time. Therefore, Plaintiff will be barred from refiling her complaint. See Santini v. Cleveland Clinic Fla., 232 F.3d 823, 825 (11th Cir. 2000) (stating that Title VII actions must be brought within 90 days after the plaintiff receives notice that the EEOC has dismissed the charge of discrimination).

Here, Plaintiff failed to comply with this Court's November 16, 2011 Order directing her to notify the Court how she intends to proceed. (Doc. 13). Plaintiff also failed to comply with this Court's December 7, 2011 order to show cause for her failure to comply with this Court's November 16, 2011 Order.4 (Doc. 15). Plaintiff further failed to appear for her noticed deposition and caused the scheduled mediation to be cancelled. As Plaintiff's counsel effectively withdrew from the case on November 16, 2011, it was Plaintiff herself, as opposed to her lawyer, who was responsible for her disregard of orders and failure to participate in the case. See Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1338 (11th Cir. 2005) (concluding that dismissal with prejudice is often reserved for cases in which a party — not the party's lawyer — is culpable for the misconduct).

The Court further finds that Plaintiff's conduct was deliberate, constituted a pattern of delay, and unreasonably delayed the proceedings. See Powell, 2011 U.S. App. LEXIS 23115, 2011 WL 5574963 (holding that the District Court abused its discretion in dismissing Plaintiff's case without considering whether her conduct was deliberate, constituted a pattern of delay, and unreasonably delayed the proceedings). Plaintiff has demonstrated a deliberate pattern of delay by failing to comply with orders (Docs. 13, 15, 19) and participate in her case.5 Additionally, Plaintiff has unreasonably delayed the proceedings by failing to participate in discovery and mediation, and both deadlines have passed. See (Doc. 9). As Plaintiff is unwilling to participate in this action, less drastic sanctions would not ensure compliance with the court's orders. See Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993). It would be a waste of judicial resources to continue with this case which Plaintiff has clearly abandoned. For these reasons, the Court should dismiss this action with prejudice pursuant to Fed. R. Civ. P. 41(b) and Local Rule 3.10.

III. CONCLUSION

Accordingly, after due consideration, it is respectfully

RECOMMENDED:

1. Defendant's Motion to Dismiss (Doc. 17) be GRANTED and this action be DISMISSED with prejudice for failure to comply with Court orders and to prosecute the case pursuant to Fed. R. Civ. P. 41(b) and Local Rule 3.10; and

2. The Clerk of Court be DIRECTED to close the file.

DONE AND ENTERED.