United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
L. HORAN UNITED STATES MAGISTRATE JUDGE.
matter is before the undersigned United States magistrate
judge for all proceedings under 28 U.S.C. § 636(c).
See Dkt. No. 6. For the reasons and to the extent
stated below, the Court DISMISSES this action without
prejudice under Federal Rule of Civil Procedure 41(b).
14, 2018, counsel for Plaintiff Jeffrey William Winters filed
a Notice of Dismissal with an attached memorandum in support.
See Dkt. No. 10. The Notice urges the Court to
dismiss this case without prejudice under Federal Rule of
Civil Procedure 41(a)(2) because “Plaintiff has lost
communication with his counsel and therefore can not properly
assist in presenting his case to the Court.” Dkt. 10-1
at 1, 3 (further providing that “Plaintiff's
counsel has attempted to contact Plaintiff on multiple
occasions unsuccessfully” and that, since “[t]he
case was removed to Federal Court on January 29, 2018 ... to
present, counsel has attempted to contact Plaintiff through
his personal information provided, correspondence, and
emergency contact information over this period of
next day, the Court, citing, particularly, “the lack of
communication between Plaintiff and his counsel since the
removal of this action - which necessarily means that
Plaintiff's counsel without consultation with Plaintiff
himself is moving for voluntary dismissal under Rule
41(a)(2)” - entered an order characterizing “the
representations in the Notice as seeking to establish that
this action should be dismissed for Plaintiff's failure
to prosecute under Federal Rule of Civil Procedure
41(b).” Dkt. No. 11 at 1-2 (citing 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 v. Wabash R.R. Co., 370 U.S. 626, 631
order required that, by no later than May 22, 2018, counsel
for Winters file a response and provide under seal contact
information for Winters. On May 21, 2018, counsel submitted
contact information as required but failed to file a
substantive response. See Dkt. No. 13. The Court
forwarded a copy of the May 15, 2018 order to Winters on May
22, 2018. See Dkt. No. 13. And, as required by the
May 15, 2018 order, Defendant Zeno Digital Solutions, LLC
filed a response on May 29, 2018 representing that it did not
oppose dismissal without prejudice under Rule 41(b).
See Dkt. No. 14 (“Defendant is in agreement
with dismissing this cause for want of prosecution without
prejudice. Defendant is not seeking to recover cost, fees, or
expenses of any kind from the Plaintiff in connection with
the dismissal for want of prosecution.”).
Standards and Analysis
Rule 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) (citation
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) (quoting, in turn, 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
record here - reflecting that Winters has failed to respond
to his counsel for some four months - supports finding that
Winters has failed to prosecute his lawsuit and that his
unresponsiveness has prevented this action from proceeding. A
Rule 41(b) dismissal of this lawsuit without prejudice is
warranted under these circumstances. And the Court concludes
that lesser sanctions would be futile.
Court is not required to delay the disposition of this case
until such time as Winters decides to engage in his action.
The Court therefore exercises its inherent power to prevent
undue delays in the disposition of pending cases and sua
sponte dismisses this action without prejudice.
Notice, however, acknowledges a statute-of-limitations issue
present here. See Dkt. No. 10-1 at 3 (noting that
the limitations period will run as of December 18, 2018, two
years after Plaintiff's December 18, 2016 accident,
see Dkt. No. 1-5 at 8-9). Therefore, absent
equitable tolling, this case, once dismissed, cannot be
timely re-filed after December 18, ...