United States District Court, S.D. Texas, Houston Division
ORDER OF DISMISSAL
KENNETH M. HOYT UNITED STATES DISTRICT JUDGE.
matter is before the Court on the defendant's, United
States of America (the “United States” or the
“defendant”), motion to dismiss (Dkt. No. 15).
The plaintiff, Marie Bolden (the “plaintiff”),
has failed to file a response and the time for doing so has
long expired. Thus, pursuant to this Court's local rules,
the plaintiff's “[f]ailure to respond will be taken
as a representation of no opposition.” S.D. Tex L.R.
7.4. After having carefully considered the motion, the
pleadings, and the applicable law, the Court determines that
the defendant's motion to dismiss should be GRANTED.
March 25, 2016, the plaintiff, proceeding pro se and
in forma pauperis, filed the instant action against
the United States Postal Service arising out of an automobile
accident that occurred on October 26, 2013, between an
automobile, in which the plaintiff was traveling as a
passenger, and a United States Postal Service truck. On June
17, 2016, the United States filed a stipulation to dismiss
the United States Postal Service as a defendant and
requesting that it be substituted as the proper defendant in
its place. (Dkt. No. 5). Thereafter, the defendant filed a
Third-Party Complaint against Jamma N. Harris, the driver of
the automobile transporting the plaintiff, alleging that
Harris's negligence was the sole cause of the
plaintiff's injuries and damages. (Dkt. No. 7). On June
20, 2016, the Court entered an Order granting the
defendant's stipulation and dismissing the United States
Postal Service as a party. (Dkt. No. 8). The defendant now
moves to dismiss the plaintiff's complaint pursuant to
Rules 37(b)(2)(A)(v) and 41(b) of the Federal Rules of Civil
Procedure due to the plaintiff's failure to comply with
this Court's Order dated November 3, 2016, granting the
defendant's motion to compel. (Dkt. No. 14).
case's inception, on March 30, 2016, the Court issued an
Order for Conference and Disclosure of Interested Parties
advising that, inter alia: (1) the parties'
attendance is required at the initial pretrial and scheduling
conference to be held telephonically on June 27, 2016 at 9:00
a.m.; (2) all defendants must be served within 90 days of
filing the complaint as mandated by Fed.R.Civ.P. 4(m); (3)
the parties are obligated to confer in accordance with
Fed.R.Civ.P. 26(f) and file a joint discovery/case management
plan no less than 10 days prior to the pretrial scheduling
conference; and (4) pro se litigants are
“bound by the requirements imposed upon counsel”
and that a “[f]ailure to comply with the order may
result in sanctions, including dismissal of the action and
assessment of fees and costs.” (Dkt. No. 3).
30, 2016, following the telephonic scheduling conference held
in this case on June 27, 2016, and in compliance with this
Court's Order, the defendant served its initial
disclosures on the plaintiff. On July 29, 2016, the defendant
served its first set of interrogatories, requests for
production and requests for admission on the plaintiff. On
September 15, 2016, however, after having failed to receive
any communication from the plaintiff and/or any answers or
responses to any of its discovery requests, the defendant
sent the plaintiff a letter stating the following:
On July 27, 2016, I served Defendant's first set of
interrogatories, requests for production and requests for
admission on you via regular mail. The answers/responses were
due almost a month ago on August 29, 2016, and the time for
objections has long since passed, so please serve your
answers/responses, without objections, as soon as possible so
that I can notice your deposition shortly thereafter and get
this case moving given the impending deadlines. If you no
longer wish to pursue this case, please let me know so that I
can draft the appropriate dismissal documents. My direct line
is (713) 567-9731.
If I do not receive your answers/responses, or in the
alternative, your communication that you no longer wish to
pursue this case, I intend on filing a motion to compel your
(See Dkt. No. 12, Ex. 3).
September 28, 2016, the plaintiff left the defendant a voice
message at the number listed above indicating that she still
wished to pursue her action against the defendant, but giving
no indication as to when she intended to serve responses to
any of the defendant's outstanding discovery requests.
Approximately an hour thereafter, the defendant telephoned
the plaintiff and left her a voice message asking her to call
to advise when it could expect to receive her outstanding
discovery answers and/or responses. The plaintiff, however,
never returned the defendant's phone call.
October 4, 2016, the defendant filed a motion to compel.
(Dkt. No. 12). On November 3, 2016, this Court entered an
Order compelling the plaintiff to provide her initial
disclosures, answers to the defendant's first set of
interrogatories and requests for production by November 13,
2016. (Dkt. No. 14). To date, the plaintiff has failed to
comply with this Court's Order or otherwise offer any
explanation for her inability to do so.
dispositive motion deadline in this case expired on February
28, 2017 and this case is currently set for docket call on
June 5, 2017.