United States District Court, W.D. Louisiana, Lafayette Division
LOUISIANA CLEANING SYSTEMS, INC., ET AL.
RANDY FONTENOT, ET AL.
PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE
pending is the defendants' motion to dismiss the
plaintiffs' complaint under Rule 41 of the Federal Rules
of Civil Procedure. (Rec. Doc. 31). The motion is opposed.
For the following reasons, the motion is DENIED AS MOOT.
currently pending is the defendants' motion to quash
discovery propounded by the plaintiffs. (Rec. Doc. 32). The
motion is opposed. For the following reasons, the motion to
quash is GRANTED.
their original complaint, plaintiffs Louisiana Cleaning
Systems, Inc. and its president, Charles Nugent, asserted
claims against the City of Eunice, Eunice mayor Scott
Fontenot, Eunice police chief Randy Fontenot, and two
unidentified police officers. The plaintiffs alleged that
Louisiana Cleaning Systems is in the business of selling
vacuum cleaners door-to-door, that they attempted to obtain a
permit to sell door-to-door in Eunice, and that they were
unable to obtain a permit because a city ordinance bans such
sales. The plaintiffs also alleged that they were harassed by
Eunice police officers while attempting to sell their
products and that Mr. Nugent was falsely arrested in June
plaintiffs contended that the defendants are liable under 42
U.S.C. § 1983 for violation of the First and Fourteenth
Amendments to the United States Constitution, that Mr.
Nugent's arrest and imprisonment violated Louisiana state
law, and that the ordinance forbidding door-to-door sales is
unconstitutional. They sought a declaration that the
ordinance is unconstitutional, an injunction against
enforcement of the ordinance, and the recovery of
defendants responded to the plaintiffs' complaint with a
motion to dismiss for failure to state a claim. (Rec. Doc.
12). The Magistrate Judge recommended that the motion be
granted in part and denied in part and that the plaintiffs be
allowed to amend their complaint. (Rec. Doc. 23). Those
recommendations were adopted in the District Court's
judgment of February 27, 2018. (Rec. Doc. 24).
more than three months went by without an amended complaint
having been filed, the defendants filed the instant motion to
dismiss on June 14, 2018, arguing that the plaintiffs'
failure to promptly file an amended complaint was a valid
basis for dismissal of the lawsuit under Fed.R.Civ.P. 41(b),
which permits involuntary dismissal upon a plaintiff's
failure to prosecute his case or to comply with any order of
the court. Four days later, on June 19, the plaintiffs filed
a motion for a status conference, which was granted. On June
25, the plaintiffs filed an amended complaint. The status
conference was held by the Magistrate Judge on June 28.
During the status conference, the parties briefly discussed
the instant motion to dismiss, the plaintiff's claimed
need for discovery, and the fact that an amended complaint
had been filed between the time that the motion for a status
conference was filed and the actual date of the conference.
During the conference, the defendants indicated that they
would likely file a reurged motion to dismiss, seeking the
dismissal of the amended complaint, and the briefing and
hearing deadlines for that anticipated motion were addressed.
Because there already were two motions set to be heard on
July 26, 2018, the Magistrate Judge indicated in the minutes
of the status conference that the anticipated motion to
dismiss would also be set for hearing on that date. (Rec.
Doc. 44). However, the reurged motion to dismiss was not
filed until July 9, 2018, making it difficult for the motion
to be fully briefed and considered by the court before the
proposed hearing date.
The Motion to Dismiss
41(b) of the Federal Rules of Civil Procedure reads as
follows: “If 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.”
The rule goes on to explain that a dismissal under Rule 41(b)
is an adjudication on the merits, requiring that the suit be
dismissed with prejudice. Dismissal with prejudice is an
extreme sanction.For that reason, the Fifth Circuit has
consistently held that dismissal with prejudice is warranted
only when a clear record of delay or contumacious conduct by
the plaintiff exists and a lesser sanction would not better
serve the interests of justice.
instant motion to dismiss was premised on the plaintiffs'
having failed to amend their complaint after having been
granted leave to do so. But no firm deadline for amending the
complaint was set forth in either the Magistrate Judge's
report and recommendation or in the District Court's
judgment. Therefore, there is no basis for concluding that
the plaintiffs failed to comply with the court's order.
There also is no evidence of contumacious conduct or any
intentional attempt to delay these proceedings. In their
opposition to the motion, the plaintiffs explained that they
experienced great difficulty obtaining the names of the
officers involved in Mr. Nugent's arrest, and this
accounted for their delay in filing the amended complaint.
Furthermore, the plaintiffs quickly responded to the
defendants' nudge (in the form of the instant motion to
dismiss), reminding them that the filing of an amended
complaint was anticipated. The plaintiffs promptly sought the
involvement of the Magistrate Judge by requesting a status
conference. More important, with the filing of the amended
complaint, the basis for the instant motion to dismiss wholly
evaporated. Accordingly, the instant motion to dismiss will
be denied as moot.
oral argument on the instant motion to dismiss will be
cancelled, and in order to allow the plaintiffs sufficient
time to respond to the defendants' reurged motion to