BACK v. HMA SANTA ROSA MEDICAL CENTER LLC

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
NORMA LIZARDO BACK,
Plaintiff,
v. 	Case No. 3:25cv2108-MCR-HTC
HMA SANTA ROSA MEDICAL
CENTER,
Defendant.
_____________________________/
REPORT AND RECOMMENDATION
Plaintiff Norma Lizardo Back, proceeding pro se, filed a complaint asserting
various claims against Defendant Santa Rosa Medical Center (“SRMC”) arising out
of her employment. 	Doc. 1. 	For the reasons set forth below, the undersigned
recommends this action be DISMISSED under Federal Rule of Civil Procedure 4(m)
for Back’s failure to timely serve the Defendant and for her failure to prosecute or
follow orders of the Court. Indeed, since filing this case in October, the Court has
received no further communication from Back.
On October 27, 2025, Back filed the instant action. On October 31, the clerk
issued a summons for Defendant and the Court advised Back it was her obligation
to timely serve the Defendant under Federal Rule of Civil Procedure 4. Doc. 4. On
January 29, more than 90 days after the complaint was filed, the Court issued an
Order directing Back to show cause why this case should not be dismissed under
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Federal Rule of Civil Procedure 4(m) for her failure to timely serve the Defendant
or for failure to prosecute. Doc. 6. On February 19, the Court issued a final show
cause order, giving Back one more opportunity to inform the Court why good cause
existed to extend her time to serve Defendant and specifically advising Back that a
dismissal of this action could be a dismissal with prejudice to the extent the claims
may be time-barred if filed in a new action.1 Doc. 7. The January 29 and February
19 Orders specifically informed Back that her failure to comply would result in a
recommendation that the case be dismissed. 	See Doc. 6 at 2; Doc. 7 at 2. 	Back
failed to respond to either order.
The Federal Rules of Civil Procedure are designed to promote efficiency. See
Fed. R. Civ. P. 1. As such, a party who elects to file suit cannot indefinitely delay
placing the opposing party on notice. 	Rule 4(m) provides that “[i]f a defendant is
not served within 90 days after the complaint is filed, the court—on motion or on its
own after notice to the plaintiff—must dismiss the action without prejudice against
1 For a Title VII action to be timely, the plaintiff must file her complaint within 90 days of her
receipt of a right-to-sue letter from the Equal Employment Opportunity Commission (“EEOC”).
Miller v. Georgia, 223 F. App’x 842, 844 (11th Cir. 2007) (citing 42 U.S.C. § 2000e-5(f)(1)). In
Back’s case, the EEOC issued its right-to-sue notice on July 25, 2025. See Doc. 2-1 at 2. At this
point, over 200 days have passed since the EEOC’s right-to-sue notice was issued, which would
make any future Title VII claim untimely. 	While it is possible there exists an extraordinary
circumstance—of which the undersigned is unaware—under which a court could apply the
principle of equitable tolling and consider an untimely complaint, “[e]quitable tolling is a rare
remedy to be applied in unusual circumstances.” Wallace v. Kato, 549 U.S. 384, 396 (2007).
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that defendant or order that service be made within a specified time.” Fed. R. Civ.
P. 4(m) (emphasis added).
As set out above, this Court has twice placed Back on notice that her failure
to serve the Defendant would result in the dismissal of her lawsuit, which could be
a dismissal with prejudice because of the statute of limitations, and still, Back has
failed to perfect service on Defendant or respond to the Court. 	“Rule 4(m) is not
aspirational. A party initiating a legal action cannot sit on his or her rights and must
serve the opposing parties within 90 days, absent a showing of good cause.”
Konieczko v. Orange Cnty. Gov’t, 2023 WL 204831, at *1 (M.D. Fla. Jan. 17, 2023),
aff'd sub nom. Konieczko v. Orange Cnty. Gov’t, No. 23-10902, 2024 WL 4274542
(11th Cir. Mar. 1, 2024).
The Court recognizes that the dismissal here is likely a dismissal with
prejudice, as any attempt to refile this action will be time-barred. 	See Mickles v.
County Club Inc., 887 F.3d 1270, 1280 (11th Cir. 2018). 	Such a dismissal is
nonetheless warranted. 	The Eleventh Circuit analyzes whether a district court’s
dismissal with prejudice was proper based on a two-prong analysis, asking if: “(1) a
party engages in a clear pattern of delay or willful contempt (contumacious conduct);
and (2) the district court specifically finds that lesser sanctions would not suffice.”
Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337-38 (11th Cir. 2005)
(collecting cases).
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Here, Back’s failure to respond to or comply with three of the Court’s Orders
across a period of over four months establishes a clear record of delay. See Jackson
v. United States, 2020 WL 13998011, at *1 n.1 (N.D. Ga. Dec. 7, 2020) (dismissing
case and explaining that even if dismissal operated as a dismissal with prejudice, it
was proper because “Plaintiff … has stalled this litigation for two and a half months
by failing to do what the Court twice ordered him to do”). 	And because Back is
representing herself, “any delay here is due to Plaintiff [herself] rather than counsel.”
Id. (“[T]he harsh sanction of dismissal with prejudice is thought to be more
appropriate in a case where a party, as distinct from counsel, is culpable.”) (quoting
Betty K. Agencies, 432 F.3d at 1338). 	Also, given Back’s wholesale failure to
respond or communicate with the Court, the undersigned finds no lesser sanctions
available in this case. 	See Carstarphen v. Mobile Cnty. Sheriff, 2016 WL 739271,
at *4 (S.D. Ala. Dec. 9, 2016) (finding that where plaintiff failed to file anything for
several months, failed to comply with a court order, and had been warned that his
actions could be grounds for dismissal, “lesser sanctions will not suffice to bring the
Plaintiff into compliance with the Court’s Orders, and that this matter is subject to
dismissal [for failure to comply with a court order].”).
Based on the foregoing, dismissal of this case is appropriate under Rule 4(m),
as well as for failure to prosecute or follow orders of the Court. See Fed. R. Civ. P.
4(m); Brown v. Tallahassee Police Dep’t, 205 F. App’x 802, 802 (11th Cir. 2006)
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(“The court may dismiss an action sua sponte under [Federal Rule of Civil Procedure
41(b)] for failure to prosecute or failure to obey a court order.”) (citations omitted);
Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (“[D]ismissal upon disregard
of an order, especially where the litigant has been forewarned, generally is not an
abuse of discretion.”) (citations omitted).
Accordingly, it is RECOMMENDED that:
1. 	This case be DISMISSED under Rule 4(m) for Back’s failure to timely
serve the Defendant and for her failure to prosecute or comply with Court orders.
2. 	The clerk close the file.
At Pensacola, Florida, this 4 th day of March, 2026.
/s/ Hope Thai Cannon
HOPE THAI CANNON
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within
fourteen (14) days of the date of the Report and Recommendation. Any different
deadline that may appear on the electronic docket is for the court’s internal use only
and does not control. An objecting party must serve a copy of its objections upon
all other parties. A party who fails to object to the magistrate judge’s findings or
recommendations contained in a report and recommendation waives the right to
challenge on appeal the district court’s order based on the unobjected-to factual and
legal conclusions. See 11th Cir. Rule 3-1.
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