United States District Court, W.D. Texas, San Antonio Division
HONORABLE FRED BIERY UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE
Report and Recommendation concerns the Motion to Dismiss for
Failure to Prosecute filed by Defendant Werner Co.,
erroneously sued in the name of Werner Holdings Co. Inc.. See
Dkt. No. 18. The District Court referred this case to the
undersigned pursuant to Western District of Texas Local Rule
CV-72 and Appendix C. See Dkt. No. 7. Authority to enter this
recommendation stems from 28 U.S.C. § 636(b)(1)(B). For
the reasons set forth below, Defendant Werner's Motion to
Dismiss for Failure to Prosecute, Dkt. No. 18, should be
GRANTED and this case DISMISSED for failure to prosecute or
comply with Court orders.
Factual and Procedural Background
Cody Brown initiated this products-liability case in the
County Court at Law No. 3 in Bexar County Texas on June 28,
2019, asserting claims against Defendant Werner arising out
of a July 2016 incident. See Dkt. No. 1-1. According to his
Original Petition, Brown fell while using a ladder
manufactured by Defendant Werner. See Id. He blames
the ladder for the fall, contending that one of its legs
bent. See Id. As a result of the fall, Brown alleges
he sustained ruptured discs and a torn rotator cuff. See
Id. Brown seeks to hold Werner strictly liable under
Texas law. See id.
September 19, 2018, Werner removed this action, citing
federal diversity jurisdiction. See Dkt. No. 1. Shortly after
removal, counsel for Plaintiff Cody Brown moved to withdraw-a
request Brown did not oppose. Accordingly, the Court granted
the motion to withdraw and set this case for an initial
pretrial conference on December 14, 2018. See Nov. 27, 2018
text order. The Court advised Brown that he would be required
to personally attend the hearing if he intended to proceed
with this action pro se. The Court also informed Brown that
he could attend by and through counsel, if a substitute
attorney could be secured. See id.
December 14, 2018, the undersigned held the initial pretrial
conference, at which counsel for Werner appeared. Plaintiff
Cody Brown, apparently proceeding pro se, did not appear.
Prior to the hearing, a copy of the Court's order setting
the hearing was mailed to Brown at his last known address on
file. At the hearing, which was recorded and held on the
record, the undersigned briefly discussed concerns about the
amount in controversy. The Court directed Werner, as the
party invoking diversity jurisdiction, to brief whether and
how the amount-in-controversy requirement has been met in
this case. The undersigned also discussed Brown's
obligation to comply with the Orders of this Court, including
to attend (in person or through counsel, if he retains
counsel) any hearing set. Finally, discussion at the hearing
touched upon the fact that it is Brown's responsibility
to ensure that the Clerk's Office and opposing counsel
have Brown's up-to-date contact information, including a
valid mailing address and telephone number. This discussion
was also memorialized in a written Order dated December 19,
2018, which was sent to Brown by Regular Mail and by
Certified Mail using the address for him on file. See Dkt.
Nos. 12 & 13.
January 8, 2019, Werner filed a brief addressing the
Court's amount-in-controversy concerns. See Dkt. No. 14.
Accordingly, a Scheduling Order was entered, setting a
discovery deadline of June 17, 2019 and a dispositive motion
deadline of July 17, 2019. See Dkt. No. 15.
April 24, 2019, Werner moved for summary judgment. See Dkt.
No. 17. In support of its motion, Werner attached Requests
for Admission for which Brown had failed to provide any
timely response. Werner explained that Brown's failure to
respond requires that the Requests for Admission be deemed
admitted. See Id. Contemporaneous with its motion
for summary judgment, Werner moved to dismiss Brown's
claims pursuant to Federal Rule of Civil Procedure 41 for
failure to prosecute. See Dkt. No. 18. Werner argues that
Brown has abandoned his claims, warranting dismissal. By
local rule, Brown's responses to Werner's motions
were due within 14-days after each of the respective motions
was filed. See Local Rule CV-7(d). Brown failed to timely
respond to either motion.
13, 2019, the undersigned ordered Brown to show cause-on or
before June 3- why this case should not be dismissed for
failure to prosecute or comply with a Court order. See Dkt.
No. 19 at 3. To date, Brown has failed to respond to the
Court's May 13 Show Cause Order. Instead, on May 22,
Werner notified the Court that Brown had apparently filed a
Notice of NonSuit in state court on December 18, 2018. See
Dkt. No. 21. Because this case had been removed, Werner did
not receive notice of Brown's December 18 filing until
May 22. See Id. Werner submits Brown's Notice of
Nonsuit “as further evidence that Plaintiff has
abandoned this claim and is failing to prosecute this
litigation and Werner is entitled to dismissal of all of the
claims asserted against it in Plaintiff's Original
to Federal Rule of Civil Procedure 41(b), a district court
may, upon a defendant's motion, dismiss an action for
failure to prosecute or to comply with any court order.
Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir.
1997). “The power to invoke this sanction is necessary
in order to prevent undue delays in the disposition of
pending cases and to avoid congestion in the calendars of the
district courts.” Id. (quoting Link v.
Wabash Railroad, 370 U.S. 626, 629-30 (1962) (brackets
omitted)). But “[t]he scope of the court's
discretion is narrower when a Rule 41(b) dismissal is with
prejudice or when a statute of limitations would bar
re-prosecution of an action dismissed under Rule 41(b)
without prejudice.” Brown v. King, 250 Fed.
App'x 28, 29 (5th Cir. 2007). Such is the case here.
Brown asserts product-liability claims under Texas law
regarding events alleged to have occurred in July 2016. Under
Texas law, the statute of limitations for products liability
actions is two years from the date the cause of action
accrues. Zurich Am. Ins. Co. v. JLG Indus., Inc.,
No. 3:11-CV-3431-L, 2012 WL 3193918, at *3 (N.D. Tex. Aug. 7,
2012) (citing Tex. Civ. Prac. & Rem. Code § 16.003);
see also Bowman v. Sandofi-Aventis U.S., No.
A-09-CA-192-SS, 2009 WL 5083435, at *2 (W.D. Tex. Dec. 10,
2009). And, “[g]enerally, ‘a cause of action
accrues when a wrongful act causes an injury, regardless of
when the plaintiff learns of that injury or if all resulting
damages have yet to occur.'” Zurich, 2012 WL
3193918, at *3 (quoting Childs v. Haussecker, 974
S.W.2d 31, 36 (Tex. 1998)).
the applicable narrower scope of discretion reflects that
dismissal is warranted here if (1) there is a clear record of
delay or contumacious conduct by Brown and (2) the Court
determines that lesser sanctions would not serve the
interests of justice by prompting diligent prosecution, or
where lesser sanctions have been employed but were futile.
See Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir.
2014). In addition, a finding of at least one of the
following three aggravating factors should be present:
“(1) delay caused by [the] plaintiff himself and not
his attorney; (2) actual prejudice to the defendant; or (3)
delay caused by intentional conduct.” Id. at
n. 9. “The presence of one aggravating factor, along
with a record of delay or contumacious conduct and
consideration of lesser sanctions, will support a dismissal
with prejudice.” Price v. McGlathery, 792 F.2d
472, 475 (5th Cir. 1985). “The district court's
consideration of lesser sanctions should appear in the record
for review of the court's exercise of its
discretion.” Sturgeon v. Airborne Freight
Corp., 778 F.2d 1154, 1159 (5th Cir. 1985). The
above-referenced requirements are met under the circumstances
of this case, and dismissal is warranted here.
the record reflects that in the 9 months this case has been
pending in this Court, Brown has entirely failed to prosecute
the case. Specifically, Brown has failed to: (1) meet and
confer as required by Rule 26(f); (2) attend the December 14
Pretrial Conference; (3) submit a written settlement offer as
contemplated by the Scheduling Order; (4) file a report on
alternative dispute resolution as contemplated by the
Scheduling Order; (5) timely designate experts; or (6)
respond to any of Werner's January 29 written discovery
requests. There are no lesser sanctions that could
appropriately be employed under these circumstances. Brown
has failed to respond to Werner's multiple discovery
attempts and the Court's two prior warnings. Because
Brown is proceeding pro se, any delay here is attributable to
him, not an attorney. Indeed, Brown's conduct appears to
be intentional as evidenced by Brown's December 2018
Notice of Nonsuit ...