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Gomez v. Renzenberger Inc.

United States District Court, N.D. Texas, Dallas Division

April 16, 2018

JOE M. GOMEZ, Plaintiff,
v.
RENZENBERGER INC., Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L.HORAN UNITED STATES MAGISTRATE JUDGE

         This pro se employment discrimination action has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C.§ 636(b) and a standing order of reference from Senior United States District Judge A. Joe Fish. The undersigned enters these findings of fact, conclusions of law, and recommendation that, for the reasons and to the extent stated below, the Court should dismiss this action without prejudice under Federal Rule of Civil Procedure 41(b).

         Applicable Background

         Plaintiff Joe M. Gomez filed this action on January 31, 2018. See Dkt. No. 1. On February 2, 2018, the Court granted his motion for leave to proceed in forma pauperis (“IFP”) and, to facilitate its obligation to screen actions filed IFP, issued a screening questionnaire. See Dkt. Nos. 6 & 7; see also 28 U.S.C. § 1915(e)(2)(B). Gomez's verified responses to that questionnaire were to have been received by the Court no later than March 5, 2018, and Gomez was warned that the “[f]ailure to provide complete answers to all questions may result in the dismissal of this action under Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or for failure to obey an order of the Court.” Dkt. No. 7 at 1.

         It is now more than one month past the deadline for Gomez to respond to the screening questionnaire - and it is more than two months since he filed this action - and Gomez has yet to comply with the Court's order or otherwise contact the Court.

         Legal Standards and Analysis

         Under Federal Rule of Civil Procedure 41(b), “a district court may dismiss an action sua sponte if the plaintiff fails to comply with court orders.” Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 440 (5th Cir. 2016) (citing Fed.R.Civ.P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (per curiam)). Under the same rule, a district court also “may sua sponte dismiss an action for failure to prosecute.” Rosin v. Thaler, 450 Fed.Appx. 383, 383-84 (5th Cir. 2011) (per curiam) (citations omitted)). That 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., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1962)); see also Lopez v. Ark. Cty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978) (“Although [Rule 41(b)] is phrased in terms of dismissal on the motion of the defendant, it is clear that the power is inherent in the court and may be exercised sua sponte whenever necessary to ‘achieve the orderly and expeditious disposition of cases.'” (quoting Link, 370 U.S. at 631)).

         A Rule 41(b) dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996).

Although “[l]esser sanctions such as fines or dismissal without prejudice are usually appropriate before dismissing with prejudice, ... a Rule 41(b) dismissal is appropriate where there is ‘a clear record of delay or contumacious conduct by the plaintiff and when lesser sanctions would not serve the best interests of justice.'”

Nottingham, 837 F.3d at 441 (quoting Bryson v. United States, 553 F.3d 402, 403 (5th Cir. 2008) (per curiam) (in turn quoting Callip v. Harris Cty. Child Welfare Dep't, 757 F.2d 1513, 1521 (5th Cir. 1985))); see also Long, 77 F.3d at 880 (a dismissal with prejudice is appropriate only if the failure to comply with the court order was the result of purposeful delay or contumacious conduct and the imposition of lesser sanctions would be futile); cf. Nottingham, 837 F.3d at 442 (noting that “lesser sanctions” may “‘include assessments of fines, costs, or damages against the plaintiff, conditional dismissal, dismissal without prejudice, and explicit warnings'” (quoting Thrasher v.City of Amarillo, 709 F.3d 509, 514 (5th Cir. 2013))).

         By not responding to the screening questionnaire, as ordered by the Court, and thereby preventing this action from proceeding, Gomez has failed to prosecute his lawsuit and also has failed to obey a court order. A Rule 41(b) dismissal of this lawsuit without prejudice is warranted under these circumstances. And the undersigned concludes that lesser sanctions would be futile. The Court is not required to delay the disposition of this case until such time as Gomez decides to comply with the Court's order. The Court should therefore exercise its inherent power to prevent undue delays in the disposition of pending case and sua sponte dismiss this action without prejudice.

         But, to the extent that Gomez asserts Title VII or similar claims, given that the EEOC right-to-sue letter attached to his complaint was issued on November 1, 2017, see Dkt. No. 3 at 2, “this case cannot be timely refiled once dismissed as more than ninety days have elapsed since [Gomez] received [the] right-to-sue letter from the EEOC. Thus, dismissal of [this] case even without prejudice will operate as a dismissal with prejudice, ” Dudley v. Dallas Indep. Sch. Dist., No. 3:99-cv-2634-BC, 2001 WL 123673, at *3 (N.D. Tex. Jan. 12, 2001) (citations omitted); see Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992) (“If a Title VII complaint is timely filed pursuant to an EEOC right-to-sue letter and is later dismissed, the timely filing of the complaint does not toll the ninety-day limitations period.” (citation omitted)).

         The Court should therefore condition its dismissal without prejudice under Rule 41(b) to allow Gomez leave to file a motion to reopen this action on or before 30 days from the date of any order accepting these findings, conclusions, and recommendation. Cf. Monell v. Berryhill, No. 4:17-cv-22-O-BP, 2017 WL 3098584, at *2 (N.D. Tex. June 30, 2017) (adopting the same procedure where a Social Security appeal was dismissed without prejudice under Rule 41(b)), rec. accepted, 2017 WL 3086326 (N.D. Tex. July 20, 2017).

         Reco ...


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