United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE
the Court is a Rule 41(b) Motion for Involuntary Dismissal
filed by Defendants Select Portfolio Servicing, Inc. and
Deutsche Bank National Trust Company, Trustee for Morgan
Stanley ABS Capital I Trust 2007-NC1, Mortgage Pass-Through
Certificates, Series 2007-NC1 [ECF No. 25]. As set forth
below, the Court finds that Plaintiff Byron Mino has engaged
in a pattern of delay and contumacious conduct and has
willfully failed to prosecute this action, which has resulted
in actual prejudice to Defendants. Accordingly, the Court
recommends that Defendants' motion be GRANTED, and
Plaintiff's claims and causes of action be DISMISSED with
filed this civil action on September 6, 2016, to prevent the
foreclosure sale of his residence in Coppell, Texas.
See Orig. Pet. [ECF No. 1-5]. Plaintiff originally
filed his lawsuit in state district court in Dallas County,
and Defendants timely removed to federal court on the basis
of diversity jurisdiction. See Orig. Pet. The Court
entered a scheduling order on November 7, 2016, establishing
August 31, 2017 as the discovery deadline. See Order
[ECF No. 6]. Thereafter, Defendants filed three motions to
extend the discovery deadline, and two motions for leave to
depose Plaintiff outside the discovery deadline. See
Mots. [ECF Nos. 10, 12, 14, 16, 18]. Because Plaintiff did
not object, the Court granted all of the motions.
motion to extend the discovery deadline represented that
Defendants had served written discovery, and had repeatedly
requested dates to depose Plaintiff, but Plaintiff had not
provided any dates for his deposition, nor did he serve
responses to the written discovery requests. See
Mots. [ECF No. 10, 12, 14, 16, 18]. The motions also
represented that Plaintiff's counsel had been
unresponsive to defense counsel's attempts to confer
before filing the motions or otherwise unavailable to discuss
the relief sought. See Id. On November 17, 2017, the
then-current deadline to complete discovery, Defendants filed
a motion for leave to conduct Plaintiff's deposition
outside of discovery. See Mot. [ECF No. 16].
Defendants explained that Plaintiff had committed to
responding to their discovery requests, by the date of the
motion - November 17, 2017 - and to sit for a deposition on
December 7, 2017. See id. However, on December 6,
2017, Defendants filed a second motion for leave to conduct
Plaintiff's deposition outside of discovery, explaining
that, despite Plaintiff's earlier commitment, Plaintiff
still had not served interrogatory responses and had not
produced a copy of an audio recording he apparently relied
upon in making his claims. See Mot. [ECF No. 18].
Plaintiff's counsel also indicated to Defendants that he
had a conflict on December 7, 2017, that would affect his
availability to defend the deposition. See Id.
Defendants represented in the Certificate of Conference on
the second motion for leave to conduct Plaintiff's
deposition outside of discovery that they attempted to confer
with Plaintiff's counsel regarding the motion, but
Plaintiff's counsel did not respond. See Id. On
January 24, 2018, Defendants filed a Motion to Compel
Plaintiff to respond to their written discovery requests and
to depose Plaintiff. See Mot. [ECF No. 20].
Plaintiff never filed a response to Defendants' Motion to
March 31, 2018, Defendants filed the Rule 41(b) Motion for
Involuntary Dismissal. See Mot. [ECF No. 25]. By
their motion, Defendants argue that, despite their efforts to
urge Plaintiff to prosecute his own case, Plaintiff has
repeatedly failed to communicate with Defendants and has
failed to comply with deadlines imposed by the Court and the
federal rules. See Mot. 3. Defendants submit the
email correspondence between Plaintiff's counsel and
defense counsel demonstrating Defendants' repeated
efforts to obtain the outstanding discovery, to no avail,
despite warnings that Defendants would seek sanctions,
including dismissal for Plaintiff's failure to prosecute.
See Mot. 4; Defs.' App. 12-16 [ECF No. 26].
further inform the Court that Plaintiff previously filed a
lawsuit against Defendants that was almost identical to the
present case, and wherein Plaintiff demonstrated a similar
pattern of neglect. See Mot. 2 (citing Mino v.
Select Portfolio Servicing, Inc., No. 3:14-CV-765-G).
That lawsuit was ultimately dismissed by another District
Judge for the Northern District of Texas based on
Plaintiff's failure to prosecute. See Mot. 2;
Defs.' App. 2. Defendants explain that, in that lawsuit,
the District Judge ordered the parties to file a joint status
report, but Plaintiff failed to coordinate the conference,
even though it was Plaintiff's responsibility to do so.
See Mot. 3. Defendants state that they ultimately
filed a separate report, but Plaintiff never filed a report.
See Mot. 3. As a consequence, the District Judge
dismissed Plaintiff's claims without prejudice, pursuant
to Rule 41(b) for Plaintiff's failure to prosecute.
See Defs.' App. 2.
of these circumstances, the Court set a hearing on
Defendants' Motions to Dismiss and to Compel for April
11, 2018, and Plaintiff and his counsel were ordered to
attend the hearing in person. See Order [ECF No.
27]. Plaintiff was further ordered to file a response to
Defendants' Motion to Dismiss by April 6, 2018.
See Order. Plaintiff failed to file the response,
and Plaintiff and his counsel failed to attend the April 11,
2018 hearing. Furthermore, neither Plaintiff's counsel,
nor the Plaintiff himself, communicated to the Court in
advance of the hearing that they would not attend. Therefore,
the Court, by separate orders, granted Defendants' Motion
to Compel and directed Plaintiff's counsel to show cause
why he should not be sanctioned for failing to comply with
the Court's order.
Civ. P. 41(b) allows the Court to dismiss an action upon the
motion of a defendant, or upon its own motion, for failure to
prosecute. See Fed. R. Civ. P. 41(b) (“If the
plaintiff fails to prosecute or to comply with these rules or
a court order, a defendant may move to dismiss the action or
any claim against it.”); Hickerson v.
Christian, 283 Fed.Appx. 251, 253 (5th Cir. 2008)
(“A district court may sua sponte dismiss an
action for failure to prosecute under Rule 41(b).”)
(citing McCullough v. Lynaugh, 835 F.2d 1126, 1127
(5th Cir. 1988)). “This authority flows from the
court's inherent power to control its docket and prevent
undue delays in the disposition of pending cases.”
Boudwin v. Graystone Ins. Co., 756 F.2d 399, 401
(5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370
U.S. 626, 626 (1962)). The dismissal may be with or without
prejudice. Long v. Simmons, 77 F.3d 878, 879-80 (5th
Cir. 1996). “A dismissal with prejudice is appropriate
only if the failure to comply with the court order was the
result of purposeful delay or contumaciousness and the record
reflects that the district court employed lesser sanctions
before dismissing the action.” Id. at 880
(citing Burden v. Yates, 644 F.2d 503 (5th Cir.
case, the record provides clear evidence of a pattern of
neglect by Plaintiff with respect to prosecuting claims
against Defendants. Plaintiff has repeatedly failed to
respond to discovery requests and appear for his deposition.
Plaintiff also failed to respond to Defendants' Motion to
Compel or their Motion to Dismiss. With respect to the Motion
to Dismiss, Plaintiff ignored a specific Order to file a
response to the motion. Plaintiff also willfully disregarded
a Court Order to appear for a hearing on the Motion to
Dismiss, and failed to contact the Court in advance of the
hearing regarding his absence. Dismissal is clearly warranted
under these circumstances.
it is appropriate to dismiss Plaintiff's claims with
prejudice. Plaintiff is responsible for his own contumacious
conduct stalling these proceedings and ignoring the
Court's Order to appear in person for a hearing on the
Motion to Dismiss. Also, as Defendants argue, Plaintiff's
failure to prosecute unfairly prejudices Defendants by
preventing them from collecting a debt to which they are
entitled, or from proceeding against the collateral securing
the debt. See Mot. 2. The Court has considered
lesser sanctions. However, Plaintiff has previously had his
claims dismissed without prejudice in the prior case before a
different District Judge in this District. Plaintiff's
pattern of behavior demonstrates that he will not be moved to
prosecute this case by any efforts by the Court or
Defendants. Accordingly, dismissal with prejudice is
reasons stated, the District Court should
GRANT Defendants' Motion to Dismiss [ECF
No. 25], and DISMISS this case with
prejudice for Plaintiff's failure to prosecute,
because Plaintiff engaged in contumacious conduct, and the
record reflects that the Court has employed lesser sanctions
prior to recommending dismissal with prejudice.