United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSION AND RECOMMENDATION OF THE UNITED
STATES MAGISTRATE JUDGE
HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE.
to Special Order 3, this case has been referred to
the United States magistrate judge for pretrial management.
For the reasons detailed herein, this action should be
DISMISSED WITH PREJUDICE for lack of
prosecution and for failure to comply with court orders.
Rule of Civil Procedure 41(b) permits a court to dismiss an
action sua sponte for failure to prosecute or follow
court orders. McCullough v. Lynaugh, 835 F.2d 1126,
1127 (5th Cir. 1988) (per curiam). This authority flows from
a court's inherent power to control its docket, prevent
undue delays in the disposition of pending cases, and avoid
congested court calendars. Link v. Wabash R.R. Co.,
370 U.S. 626, 629-31 (1962). Rule 41(b) also permits a court
to dismiss an action with prejudice for, inter alia,
failure to prosecute or comply with the rules of civil
procedure. A Rule 41(b) dismissal is appropriate where there
is a clear record of delay or contumacious conduct by the
plaintiff and the court finds that lesser sanctions would not
suffice. Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188,
1191 (5th Cir. 1992). Generally, the court must find one or
more of the following aggravating factors: (1) delay
attributable to the plaintiff, not to her attorney; (2)
actual prejudice to the defendant; and (3) delay caused by
intentional misconduct. Id.
filed its Motion for Summary Judgment on October 20,
2017. Doc. 17. Plaintiff, who is proceeding pro se,
was required to file her response, if she opposed the relief
requested, by November 10, 2017, but did not do so.
See N.D. Tex. Local Rule 7.1(e) (establishing
deadlines for filing responses to motions). Accordingly, this
Court issued an order directing Plaintiff to respond to
Defendant's motion no later than December 18, 2017, if
she was opposed to the dismissal of this case, and further
warned that Plaintiff risked dismissal of this case pursuant
to Defendant's motion and/or for failure to prosecute if
she did not respond. Doc. 22. That deadline has now passed,
and Plaintiff still has not responded.
Plaintiff has repeatedly failed to comply with other court
orders and rules since the inception of this case. First, she
did not register for CM/ECF as is required by Northern
District of Texas Local Civil Rule 5.1. She again failed to
register after being explicitly ordered to do so. Doc. 8.
Plaintiff next failed or refused to respond to the
Court's order directing her to submit a scheduling
proposal. Doc. 5. She also did not respond to Defendant's
discovery requests, Doc. 14 at 1-2, prompting Defendant to
file a Motion to Compel, to which Plaintiff also did
not respond. Thus, the motion was granted as unopposed. Doc.
15. Subsequently, however, Defendant's counsel advised
the Court that Plaintiff did not respond to any of
Defendant's discovery requests despite the Court's
order requiring her to do so.
on the totality of circumstances, the Court can only find
that Plaintiff is solely responsible for the lag in this
case, as she has taken no action of record since she filed
her complaint over a year ago. Berry, 975 F.2d at
1191. The Court additionally finds that Plaintiff's
failures to follow rules of procedure and comply with court
orders were willful and intentional. Id. In short,
Plaintiff has neglected her case entirely.
foregoing reasons, this case should be DISMISSED WITH
PREJUDICE. SO RECOMMENDED.
FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
of this report and recommendation will be served on all
parties in the manner provided by law. Any party who objects
to any part of this report and recommendation must file
specific written objections within 14 days after being served
with a copy. See28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b). An objection must identify the specific
finding or recommendation to which objection is made, state
the basis for the objection, and specify the place in the
magistrate judge's report and recommendation where the
disputed determination is found. An objection that merely
incorporates by reference or refers to the briefing before
the magistrate judge is not specific. Failure to file
specific written objections will bar the aggrieved party from
appealing the factual findings and legal conclusions of the
magistrate judge that are accepted or adopted by the district