United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE.
Tyonda Wilson brings this pro se action against her
former employer, alleging retaliation in violation of the Age
Discrimination in Employment Act of 1967, 29 U.S.C. §
621, et seq. (the “ADEA”). See
Dkt. No. 3. Her 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 United States District Judge Karen Gren Scholer.
April 5, 2019, the deadline for Ms. Wilson to file an amended
motion for leave to proceed in forma pauperis
(“IFP”) and verified responses to the screening
questionnaire, see Dkt. Nos. 5 & 6, she filed a
Motion for Leave, Extension or Dismissal Without Prejudice
[Dkt. No. 7], requesting “an extension, continuance or
dismissal without prejudice” because she has “not
been able to research and provide the necessary time to this
case due to the long hours trying to earn money driving for
Court responded by entering a notice of deficiency on April
8, 2019 [Dkt. No. 8] (the “NOD”):
To the extent that Ms. Wilson requests that her case be
dismissed without prejudice, this filing could be construed
as a notice of dismissal under Federal Rule of Civil
Procedure 41(a)(1)(A)(i), which is self-executing.
See Fed. R. Civ. P. 41(a)(1)(A) (subject to some
exceptions, “the plaintiff may dismiss an action
without a court order by filing: ... (i) a notice of
dismissal before the opposing party serves either an answer
or a motion for summary judgment”); see also
Matthews v. Gaither, 902 F.2d 877, 880 (11th Cir. 1990)
(per curiam) (a notice of dismissal under Rule 41(a)(1)(A)(i)
“is effective immediately upon filing”);
Taylor v. Tesco Corp. (US), 816 F.Supp.2d 410, 411
(S.D. Tex. 2011) (“Although styled a ‘motion to
dismiss,' Plaintiff's ... filing had the effect of a
Rule 41(a)(1) notice of dismissal as to any defendants who
had not yet served either an answer or a motion for summary
judgment.” (citing Matthews, 902 F.2d at
880)); Williams v. Ezell, 531 F.2d 1261, 1263-64
(5th Cir. 1976) (“At the time plaintiffs filed their
motion to dismiss the case was effectively
An unambiguous Rule 41(a)(1)(A)(i) notice divests the Court
of jurisdiction. See Qureshi v. United States, 600
F.3d 523, 525 (5th Cir. 2010). But Ms. Wilson is proceeding
pro se. And the dismissal of this action even
without prejudice, see Fed. R. Civ. P. 41(a)(1)(B),
could operate to dismiss her claims with prejudice, 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)); Bluitt v. Houston Indep. Sch. Dist., 236
F.Supp.2d 703, 715 (S.D. Tex. 2002) (“[A]s with a Title
VII claim, an ADEA claim must be filed within ninety days
after receipt of a notice of right to sue.” (citing 29
U.S.C. § 626(e); St. Louis v. Tex. Worker's
Comp. Comm'n, 65 F.3d 43, 47-48 (5th Cir. 1995))).
Ms. Wilson must therefore file a written response to this
order no later than May 8, 2019 to confirm that she wishes to
dismiss this litigation. She may, alternatively, file by that
date her amended motion for leave to proceed IFP and verified
responses to the screening questionnaire. But failure to take
any action by that date will result in a recommendation that
her complaint be dismissed for failure to prosecute and obey
orders of the Court under Federal Rule of Civil Procedure
now almost three months past the deadline to comply with the
Court's order, and Ms. Wilson has failed to comply with
the NOD or otherwise contact the Court. The undersigned
therefore enters these findings of fact, conclusions of law,
and recommendation that, for the reasons stated below, the
Court should dismiss this action without prejudice under
Federal Rules of Civil Procedure 41(b).
Standards and Analysis
41(b) “authorizes the district court to dismiss an
action sua sponte for failure to prosecute or comply
with a court order.” Griggs v. S.G.E. Mgmt.,
L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (citing
McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.
1988) (per curiam)); accord Nottingham v. Warden, Bill
Clements Unit, 837 F.3d 438, 440 (5th Cir. 2016)
(failure to comply with a court order); Rosin v.
Thaler, 450 Fed.Appx. 383, 383-84 (5th Cir. 2011) (per
curiam) (failure to prosecute).
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. Cnty. 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)).
Court's authority under Rule 41(b) is not diluted by a
party proceeding pro se, as “[t]he right of
self-representation does not exempt a party from compliance
with relevant rules of procedural and substantive law.”
Wright v. LBA Hospitality, 754 Fed.Appx. 298, 300
(5th Cir. 2019) (per curiam) (quoting Hulsey v.
Texas, 929 F.2d 168, 171 (5th Cir. 1991) (quoting, in
turn, Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.
41(b) dismissal may be with or without prejudice. See
Long v. Simmons, 77 ...