United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE
pending is the defendants' motion to dismiss pursuant to
Fed.R.Civ.P. 41(b). (Rec. Doc. 39). The motion was referred
to the undersigned Magistrate Judge for review, report, and
recommendation in accordance with the provisions of 28 U.S.C.
§ 636 and the standing orders of this Court. The motion
is opposed. Considering the evidence, the law, and the
arguments of the parties, and for the reasons fully explained
below, it is recommended that the motion be granted in part
and denied in part.
an employment discrimination lawsuit. In her complaint, the
plaintiff alleged that she is a 53-year-old African-American
woman who was wrongfully terminated from her employment with
a Burger King franchise. In January 2017, this Court
recommended that this action be stayed, that the plaintiff be
ordered to submit her claim to arbitration, and that the
defendants not be permitted to recover attorneys' fees.
(Rec. Doc. 21). On March 9, 2017, the District Court adopted
the recommendations in part, and entered judgment, staying
the case pending arbitration, ordering the plaintiff to
submit her claim to arbitration, and awarding attorneys'
fees to the defendants. (Rec. Doc. 24). Thereafter, the
plaintiff sought reconsideration of that judgment but the
District Court denied the requested relief and maintained its
rulings, staying the case pending arbitration and requiring
the plaintiff to submit her claim to arbitration. (Rec. Docs.
defendants now seek to have the plaintiffs' claim
dismissed for failure to prosecute or for failure to comply
with a court order because she has not yet submitted her
claim for arbitration. Alternatively, the defendants seek an
order establishing a deadline for the plaintiff to submit her
claim to arbitration.
The Applicable Standard
41(b) of the Federal Rules of Civil Procedure provides that a
court may, in its discretion, dismiss any action based on the
failure of the plaintiff to comply with any order of the
court. In applying the sanction of dismissal with
prejudice, courts have traditionally considered the extent to
which the plaintiff, rather than his counsel, is responsible
for the delay or failure to comply with the court's
order. A dismissal with prejudice is an extreme
sanction and is authorized only upon a showing of
(1) a clear record of delay or contumacious conduct by the
plaintiff and (2) that lesser sanctions would not serve the
best interests of justice. Generally speaking, a court should also
look to the presence of one or more aggravating factors,
including the extent to which the plaintiff is personally
responsible for the delay, the degree of actual prejudice to
the defendant, and whether the delay was the result of
The Plaintiff Should be Permitted an Opportunity to
Submit Her Claim to
evidence was presented supporting the conclusion that the
plaintiff's delay in submitting her claim to arbitration
was the result of her own acts or omissions. To the contrary,
the plaintiff established that she was previously represented
by an attorney who, during the representation, was suspended
from the practice of law. The plaintiff did not learn about
the March 9, 2017 and May 4, 2017 rulings until she
simultaneously learned that her attorney had been suspended.
She then took steps to retain new counsel in compliance with
a deadline imposed by the court, and her new lawyer filed
motions for relief from the earlier judgments and responded
to the instant motion. Although it is correct that the
plaintiff has not yet submitted her claim to arbitration, the
plaintiff's delay in doing so is attributable to her
prior lawyer's failure to properly maintain communication
with her, her unanticipated need to retain new counsel, and
her current lawyer's reasonable effort to seek relief
from the court's prior rulings before moving forward with
arbitration. The plaintiff also represented in her briefing
that efforts had been underway until recently to negotiate a
settlement of her claim. Accordingly, this Court finds that
the delays in moving forward with arbitration were not the
result of the plaintiff's deliberate delay or
Court further finds that there is no evidence that lesser
sanctions than dismissal of the lawsuit would not be
appropriate in this case. The actions undertaken by the
plaintiff's new counsel clearly establish the
plaintiff's timely compliance with court orders and
thoughtful attempts to advocate the plaintiff's position.
There is no basis for concluding that dismissal of the
lawsuit is the only valid avenue forward. Therefore, this
Court finds that imposing a sanction less severe than
dismissal of the lawsuit would serve the best interests of
justice in this particular case. Indeed, the defendants
themselves alternatively sought to have a deadline
established for the submission of the claim to arbitration.
This Court finds that setting such a deadline is the better
course of action.
the defendants failed to prove that the plaintiff's delay
in initiating arbitration has resulted in them being actually
prejudiced. This lawsuit was filed in early 2016, and the
delays to date have not been extreme or outrageous. Although
the defendants pointed out that some of the individual
defendants and fact witnesses are no longer employed by
defendant Strategic Restaurants Acquisition Company, employee
turnover in the fast food industry is notoriously high. This
would not be a valid reason for fixing an early trial date if
this matter were going to be litigated rather than
arbitrated, and the defendants have not established that
these persons cannot be located.
these reasons, this Court finds that the plaintiff's
claim should not be dismissed, and the plaintiff should be
permitted an opportunity to submit her claim to arbitration.
The Plaintiff is not Entitled to Recover ...