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Wilson v. Watson

United States District Court, N.D. Texas, Dallas Division

July 29, 2019

TYONDA WILSON, Plaintiff,
v.
WILLIS TOWERS WATSON, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         On 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 Lyft.”

         The 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 terminated.”).
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 41(b).

Id.

         It is 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).

         Legal Standards and Analysis

         Rule 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).

         This 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)).

         The 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. Nov. 1981))).

         A Rule 41(b) dismissal may be with or without prejudice. See Long v. Simmons, 77 ...


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