United States District Court, W.D. Louisiana, Lafayette Division
REBECCA F. DOHERTY UNITED STATES DISTRICT JUDGE
before the court is "Defendant's Motion to Dismiss
Plaintiffs Claims with Prejudice" [Rec. Doc. 18], filed
by defendant Sears, Roebuck and Co. ("Sears").
While this matter was previously dismissed without prejudice
during a show cause hearing at open court on May 24, 2017
[Rec. Doc. 17], Sears requests dismissal of this action with
prejudice. Considering this Court's prior order granting
Sears permission to request dismissal with prejudice at least
thirty days after the previous show cause hearing, and the
plaintiffs failure to prosecute his claims and comply with
this Court's orders, this Court grants Sears' motion.
Ira Kerry filed this suit in the 15th Judicial
District Court for the Parish of Lafayette, Louisiana on
October 14, 2016, alleging personal injuries stemming from an
incident that occurred on March 6, 2016 in one of the
defendant's stores in Lafayette, Louisiana. [Rec. Doc. 1]
Sears removed the case to this Court on December 1, 2016
[Id.] and filed an Answer on December 5, 2016. [Rec.
Doc. 5] A Scheduling Order was issued on December 13, 2016.
[Rec. Doc. 7]
January 26, 2017, counsel for Mr. Kerry filed an Unopposed
Motion to Extend the Rule 26(f) Report (Phase I) and Joinder
of Parties and Amendment of Pleadings Deadlines [Rec. Doc.
8], averring that counsel would be filing a motion to
withdraw, and requesting time for Mr. Kerry to retain new
representation. The Motion to Extend was granted, and the
Rule 26(f) Report (Phase I) and Joinder of Parties and
Amendment of Pleadings Deadlines were extended. [Rec. Doc. 9]
Plaintiffs counsel filed a motion to withdraw on January 31,
2017. [Rec. Doc. 10] The motion was granted, and this Court
ordered Mr. Kerry, within thirty days, to either enroll new
counsel or declare in writing his intent to proceed pro
se in this matter, noting that failure to comply would
place Mr. Kerry at risk his suit would be dismissed. [Rec.
the deadline passed with no action by Mr. Kerry, this Court
ordered him to appear on April 20, 2017 to show cause why he
should not be held in contempt for failure to comply with
this Court's order. [Rec. Doc. 12] Before the date of the
hearing, Sandra Franklin - averring that she is Mr.
Kerry's daughter - sought a telephone conference with
this Court to discuss the status of this matter and to
request additional time for Mr. Kerry to obtain
representation. [Rec. Doc. 14] A status conference was held
April 19, 2017, at the conclusion of which this Court
continued its Rule to Show Cause hearing to May 24, 2017.
[Id.] Again, the Court ordered Mr. Kerry to appear
to indicate whether he had obtained counsel or would be
proceeding pro se. [Id.]
Mr. Kerry nor anyone claiming to represent him appeared at
the show cause hearing on May 24, 2017, which was attended
only by counsel for Sears. [Rec. Doc. 17] Counsel for Sears
made an oral motion to dismiss, which this Court granted
without prejudice. [Id.] This Court further ordered
that once thirty days had passed after the issuance of the
minutes of the show cause hearing, counsel for Sears would be
allowed to move this Court for dismissal with prejudice.
[Id.] More than thirty days have passed since the
show cause hearing, and counsel for Sears has now moved for
dismissal with prejudice.
Mr. Kerry nor anyone claiming to represent him has contacted
the Court since the status conference on April 19, 2017, nor
has any other forward motion been made on this matter. The
deadline to file objections to Sears' motion to dismiss
has passed, and no objection has been lodged.
Fed.R.Civ.P. 41(b), "[i]f the plaintiff fails to
prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against
it. Unless the dismissal order states otherwise, a dismissal
under this subdivision (b)...operates as an adjudication on
the merits." The Fifth Circuit has recognized dismissal
with prejudice "is the severest sanction possible,
" and is only appropriate as a response to failure to
prosecute or comply with court orders if "(1) there is a
clear record of delay or contumacious conduct by the
plaintiff, and (2) lesser sanctions would not serve the best
interests of justice." Atl. Sounding Co. v.
Fendlason, 555 F.App'x 378, 380 (5th Cir. 2014).
Furthermore, "dismissal with prejudice is a more
appropriate sanction when the objectionable conduct is that
of the client, and not the attorney, " and "advance
warnings of possible default mitigate the requirement that
the district court consider lesser sanctions."
progress has been made on this matter since the time Mr.
Kerry became unrepresented. Mr. Kerry has twice failed to
appear as ordered, and has twice failed to comply with this
Court's order to give notice whether he intends to
proceed pro se or has been able to obtain
representation. These delaying actions were those of the
plaintiff, rather than counsel, and Mr. Kerry has been given
multiple warnings that failure to comply with court order
might result in the dismissal of his suit. This Court thus
finds he has thus failed to prosecute his claims and has
failed to comply with court orders, which previously resulted
in the dismissal of this matter without prejudice. Given that
Mr. Kerry is unrepresented, this Court has extended him
multiple opportunities to ensure that any valid claims he
seeks to bring can progress, opportunities of which Mr. Kerry
has not availed himself.
the facts and law described above, this Court finds that
dismissal with prejudice is appropriate, and grants
Sears' motion therefor.
HEREBY ORDERED this matter is ...