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
Sheavet Weisner, who is proceeding pro se, has
failed to comply with orders to attend a Rule 16 conference
and respond to a Show Cause Order. As a result, she has
failed to prosecute her case. The Court should strike her
pleadings and dismiss her claims without prejudice.
April 4, 2019, Plaintiff filed an Original Petition and
Application for Temporary Restraining Order, Temporary
Injunction, and Permanent Injunction in the 160th Judicial
District Court of Dallas County, Texas, seeking to prevent
the foreclosure of her home located in Dallas, Texas.
Defendant Wells Fargo Bank NA timely removed the case to
federal court under 28 U.S.C. § 1446 on the basis of
federal question and diversity jurisdiction. In its Notice of
Removal, Defendant averred that Plaintiff filed her lawsuit
two days after the scheduled foreclosure sale date. Removal
Notice at 2, ¶ 2 (ECF No. 1).
8, 2019, the Court entered an Order Requiring a Rule 16
Scheduling Conference to occur on June 5, 2019, at 9:30 A.M.
Order (ECF No. 6). On June 5, 2019, at 9:30 A.M.,
Defendant's counsel appeared for the scheduling
conference as ordered, but Plaintiff did not. When Plaintiff
failed to appear at the scheduling conference, the Court
issued a Show Cause Order requiring Plaintiff to file a
written response showing good cause for failing to appear in
court on June 5, 2019. Order at 2 (ECF No. 8). The Court
ordered Plaintiff to file her response by July 3, 2019, and
warned Plaintiff that failure to comply with the Show Cause
Order “may result in appropriate sanctions, including a
recommendation to the District Court that this case be
dismissed without prejudice for failure to comply with the
Court's orders or failure to prosecute pursuant to
Federal Rules of Civil Procedure 16(f) and/or 41(b).”
Id. To date, Plaintiff has not filed a response to
the Show Cause Order.
Rule of Civil Procedure 16(f) provides, in pertinent part:
“[o]n motion or on its own, the court may issue any
just orders, including those authorized by Rule
37(b)(2)(A)(ii)-(vii), if a party or its attorney: fails to
appear at a scheduling or other pretrial conference; . . . or
fails to obey a scheduling or other pretrial order.”
Fed.R.Civ.P. 16(f)(1)(A) & (C). Among the sanctions
contemplated by this rule are “striking pleadings in
whole or in part” and “dismissing the action or
proceeding in whole or in part.” Fed.R.Civ.P.
37(b)(2)(A) (iii) & (v). Additionally, Rule 41(b) of the
Federal Rules of Civil Procedure allows a court to dismiss an
action sua sponte for failure to prosecute or for
failure to comply with the federal rules or any court order.
Fed.R.Civ.P. 41(b); Larson v. Scott, 157 F.3d 1030,
1031 (5th Cir. 1998). “This authority [under Rule
41(b)] 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)). Such a
dismissal may be with or without prejudice. See 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 contumacious conduct and the imposition of lesser
sanctions would be futile. Id.; see also Berry v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
has failed to comply with orders to participate in a
scheduling conference and respond to a Show Cause Order. She
has failed to prosecute her case. The Court previously warned
Plaintiff that failure to comply with the Court's orders
could result in sanctions, including a recommendation to the
District Court that this case be dismissed without prejudice.
Under these circumstances, the District Court should strike
Plaintiffs pleadings and dismiss her claims without prejudice
under Rules 16(f) and 41(b).
FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
of this report and recommendation shall 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. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b). To be specific, 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 ...