United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE.
Bonnie Olivares (“Olivares”) filed her first
amended complaint in this case on March 18, 2019. (Dkt. 24).
Defendant Employment Risk Systems (“ERS”) moved
for summary judgment as to Olivares's claims against it
on April 8, 2019. (Dkt. 27). Olivares's response to
ERS's motion was due on April 22. See W.D. Tex.
Loc. R. CV-7(e)(2). Olivares did not file a response.
April 18, Olivares's counsel requested the first
extension of time to respond to the motion because
“personal matters and the demands of other cases ma[de]
it impossible to meet the present deadline.” (Dkt. 30,
at 1). The motion was unopposed, and the Court granted it.
Olivares's response became due on May 13. On May 17,
after the deadline had passed, Olivares sought a second
extension of time, this time for “[f]amily obligations
and the press of other business.” (Dkt. 32, at 2). As
this motion was also unopposed, the Court granted it too;
Olivares's deadline was extended to May 20. Olivares then
moved for a third extension of time on the day her response
was due. (Dkt. 33). This time, Olivares requested the
extension because “Plaintiff and ERS are engaged in
serious talks which, if successful, will render moot any need
for Plaintiff to respond to the ERS Motion.”
(Id. at 1). This motion was also unopposed, and the
Court granted it.
point, Olivares's response was due on May 31. Yet again,
Olivares did not meet her deadline. She filed her fourth
motion for extension of time on May 31, this time indicating
that she and ERS had “come to an agreement” for
the “complete resolution and dismissal of this part of
the case” but “need[ed] more time to finalize the
documents involved.” (Dkt. 34, at 1-2). She anticipated
that the required documents would be finalized by June 14.
(Id. at 2). The Court permitted Olivares yet another
extension of time to respond to ERS's summary judgment
motion but indicated that no further extensions of time would
be granted. On June 14, Olivares did not dismiss her claims
against ERS. Instead, she sought a fifth extension of time.
(Dkt. 35). The reason for this latest extension was a
“catastrophic computer failure” on June 2-twelve
days before Olivares's response was due and two days
after her counsel indicated that the finalized documents were
supposed to be sent to Olivares. (Id. at 1-2). The
Court denied Olivares's motion. (Dkt. 36).
21, Defendants Luling Care Nursing Operations, LLC, and
Luling Care Center Employee Safety Benefit Plan
(collectively, “the Luling Defendants”), filed a
motion for summary judgment as to Olivares's claims
against them. (Dkt. 37). Olivares's deadline to respond
to that motion was July 5. See W.D. Tex. Loc. R.
CV-7(e)(2). She moved to extend this deadline, too, because
of the July 4 holiday and counsel's planned trip over the
holiday weekend. (Dkt. 39, at 2). The Court noted that this
was Olivares's sixth motion for an extension of time in
this case and that she had requested an extension of time to
respond to every opposed motion filed in this litigation.
(Dkt. 40, at 2). However, because of the holiday and the fact
that the motion was unopposed, the Court granted Olivares an
extension through July 10. (Id.). The Court warned
Olivares, however, that it would grant her no further
extensions of time to respond to the Luling Defendants'
passed with no response from Olivares. Instead, the next day,
and despite the Court's warning, she filed her seventh
motion for an extension of time. (Dkt. 43). The reason for
this extension was Olivares's counsel “ha[d] been
unable to function, over the past few days, in response
to” a family crisis. (Id. at 2). The Luling
Defendants responded that Olivares “had ample time to
respond to the MSJ before” counsel's crisis arose.
(Dkt. 44). The Court agrees.
courts have the authority to dismiss a complaint for failure
to prosecute. Link v. Wabash R. Co., 370 U.S. 626,
633 (1962); Fed.R.Civ.P. 41(b) (permitting a court to dismiss
an action if the plaintiff “fails to prosecute or to
comply with . . . a court order”). Dismissal with
prejudice is appropriate if there is a “clear record of
delay or contumacious conduct by the plaintiff and if
“lesser sanctions would not serve the best interests of
justice.” Callip v. Harris Cty. Child Welfare
Dep't, 757 F.2d 1513, 1519 (5th Cir. 1985) (internal
quotation marks and citation omitted). “A district
court may dismiss sua sponte, with or without notice
to the parties.” Rogers v. Kroger Co., 669
F.2d 317, 319 (5th Cir. 1982).
action has been pending for over a year. Throughout this
time, Olivares has sought an extension of time-seven in
total-to respond to every opposed motion filed in
this case. She has sought these extensions even after the
Court has warned her-twice-that no further extensions would
be granted. The Court therefore finds that there is a clear
record of delay that justifies dismissing this action for
want of prosecution. Accordingly, IT ...