United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
L. HORNSBY U.S. MAGISTRATE JUDGE
tractor-trailer rig traveling on I-20 rear ended a Dodge
stratus driven by Jabriel Pennington, which led to a chain
reaction crash that involved several other cars. Mr.
Pennington filed suit in state court against the truck driver
and other defendants, and his case was removed to this court.
It was then consolidated with a similar action filed by
Patricia Cascio, another driver who alleges she was injured
in the accident.
the court is a Motion to Dismiss (Doc. 25) in which two of
the defendants ask the court to dismiss Mr. Pennington's
claims because he has failed to comply with a discovery
order. After the motion was filed, Mr. Pennington's
attorney withdrew based on a lack of communication from Mr.
Pennington. For the reasons that follow, it is recommended
that all claims asserted by Mr. Pennington be dismissed for
failure to prosecute.
Michael Ratliff and National Specialty Insurance Company
served interrogatories and requests for production of
documents on Mr. Pennington in January 2018. The defendants
afforded Mr. Pennington extensions of time, but he failed to
respond. They filed a motion to compel. The court entered an
order (Doc. 24) that directed Mr. Pennington to
“provide full and complete answers to the outstanding
written discovery no later than April 17, 2018” and
warned that failure to do so “will result in an
represent in their motion to dismiss that they did receive a
response to the discovery on April 17 from Mr.
Pennington's attorney, Jack M. Bailey Jr., but the
answers were not complete and indicated that Mr. Pennington
did not personally participate in preparing the responses.
The responses included objections and noted that
“counsel has not received any response from plaintiff
to any of the multiple requests for plaintiff to meet with
counsel in order to review his discovery responses.”
Attorney Bailey indicated that he had not spoken with Mr.
Pennington since late February 2018.
Bailey filed a Motion to Withdraw (Doc. 27) soon after the
defendants filed their motion to dismiss. He stated,
“It appears that plaintiff has abandoned his
counsel.” Mr. Bailey wrote that he sent five letters to
Mr. Pennington during March and April 2018, as well as a
Facebook message, all asking him to contact Mr. Bailey as
soon as possible. There was no response from Mr. Pennington.
Mr. Bailey represented that he gave notice of his intention
to withdraw to Plaintiff by mailing his motion to Mr.
Pennington's last known home address and Mr.
Pennington's grandmother's home, where he had been
known to stay, with both addresses being here in Shreveport.
Mr. Bailey noted that Mr. Pennington had said he no longer
has a telephone and could not give a contact telephone number
to his counsel.
court issued an order (Doc. 28) that granted Bailey's
motion to withdraw, strongly encouraged Mr. Pennington to
retain new counsel, and granted Mr. Pennington until May 30,
2018 to either (1) enroll new counsel or (2) file with the
court a written statement that he intends to represent
himself. The order warned: “Failure to take one of
these steps by the May 30, 2018 deadline may result in
Plaintiff's case being dismissed, without further notice,
for failure to prosecute.” The court mailed a copy of
that order to both Mr. Pennington's address and his
grandmother's address. The copy mailed to Mr.
Pennington's home address was returned marked not
deliverable, but the copy addressed to his grandmother was
Rule of Civil Procedure 37(b)(2) provides that a court may
dismiss an action or impose other sanctions if a party fails
to obey an order to provide or permit discovery. A dismissal
with prejudice for violation of a discovery order is
permitted if: (1) the refusal to comply results from
willfulness or bad faith and is accompanied by a clear record
of delay or contumacious conduct; (2) the violation is
attributable to the client instead of his attorney; (3) the
misconduct substantially prejudices the opposing party; and
(4) a less drastic sanction would not substantially achieve
the desired deterrent effect. FDIC v. Conner, 20
F.3d 1376, 1380-81 (5th Cir. 1994); Chisesi v. Auto Club
Family Ins. Co., 374 Fed.Appx. 475 (5th Cir. 2010).
court also has the authority to dismiss an action for failure
to comply with an order, such as the one that directed Mr.
Pennington to either enroll new counsel or file a written
statement that he intends to represent himself. “A
district court may dismiss an action for failure of a
plaintiff to prosecute or to comply with any order of
court.” McCullough v. Lynaugh, 835 F.2d 1126,
1127 (5th Cir. 1988), citing Fed.R.Civ.P. 41(b). “The
court possesses the inherent authority to dismiss the action
sua sponte, without motion by a defendant.”
Id., citing Link v. Wabash Railroad, 82
S.Ct. 1386, 1388-90 (1962). Dismissal for such failures may
be ordered “with or without notice to the
parties.” Rogers v. Kroger Company, 669 F.2d
317, 319-20 (5th Cir.1982).
is a clear record of delay or contumacious conduct in this
case. Multiple letters from counsel, a Facebook message, and
a court order failed to get Mr. Pennington to do anything to
participate in his case. The record indicates that the
violations of the orders and delays are attributable to Mr.
Pennington rather than his former attorney, who made multiple
efforts to get Mr. Pennington to participate. The misconduct
substantially prejudices the defendants, who lack even the
most basic discovery that is ordinarily obtained through the
interrogatories and requests for production that were served.