United States District Court, W.D. Louisiana, Shreveport Division
VAN NESS MANAGEMENT, L.L.C.
HOUSTON SPECIALTY INSURANCE CO., ET AL.
MAURICE HICKS, JR., JUDGE
REPORT AND RECOMMENDATION
L. HAYES, UNITED STATES MAGISTRATE JUDGE
September 11, 2018, the court permitted plaintiff's
attorneys to withdraw from the above-captioned matter. (Sept.
11, 2018, Order [doc. # 39]). The court simultaneously
ordered plaintiff to enroll new counsel within 30 days of the
date of that order. Id.
more than 30 days elapsed without any response from
plaintiff, the court ordered plaintiff to show cause by
October 26, 2018, why its complaint should not be DISMISSED
with prejudice for failure to comply with an order(s) of this
court. Fed.R.Civ.P. 41(b). (Oct. 17, 2018, Order [doc. #
40]). The latest deadline again has passed, without any
further submission or response from the plaintiff.
Federal Rules of Civil Procedure provide that “[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.” Fed.R.Civ.P. 41(b) (in pertinent
part). The Supreme Court has interpreted this rule as
authorizing the district court to dismiss an action sua
sponte, even without a motion by defendant. Link v.
Wabash R.R.Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386,
1388-89 (1962). “The power to invoke this sanction is
necessary in order to prevent undue delays in the disposition
of pending cases and to avoid congestion in the calendars of
the [d]istrict [c]ourts.” McCullough v.
Lynaugh, 835 F.2d 1126, 1127 (5th Cir.1988).
extent that the applicable statute of limitations may bar
plaintiff from re-filing the instant suit, then dismissal at
this juncture effectively will constitute dismissal
“with prejudice, ” - “an extreme sanction
that deprives the litigant of the opportunity to pursue his
claim.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d
1188, 1190 (5th Cir. 1992) (internal quotations
omitted). Dismissal with prejudice for failure to prosecute
or to comply with a court order is warranted only where
“a clear record of delay or contumacious conduct by the
plaintiff exists and a lesser sanction would not better serve
the interests of justice.” See Millan v. USAA
General Indem. Co., 546 F.3d 321, 325 (5th
Cir. 2008) (citations and internal quotation marks omitted).
In addition, the Fifth Circuit generally requires the
presence of at least one of three aggravating factors:
“(1) delay caused by [the] plaintiff himself and not
his attorney; (2) actual prejudice to the defendant; or (3)
delay caused by intentional conduct.” Id.
undersigned finds that the requirements for a dismissal with
prejudice are satisfied in this case. As discussed above,
plaintiff has ignored more than one court order. Furthermore,
plaintiff's unrepentant flaunting of court
orders reflects its own contumaciouness or
“stubborn resistance to authority” which is
personally attributable to plaintiff as a litigant
unrepresented by counsel.
consideration, the court is constrained to find that this
matter is subject to dismissal for failure to prosecute/heed
orders of the court. Fed.R.Civ.P. 41. Accordingly, IT IS
RECOMMENDED that the instant suit be DISMISSED, with
prejudice. Fed.R.Civ.P. 41(b).
the provisions of 28 U.S.C. §636(b)(1)(C) and FRCP Rule
72(b), the parties have fourteen (14) days
from service of this Report and Recommendation to file
specific, written objections with the Clerk of Court. A party
may respond to another party's objections within
fourteen (14) days after being served with a
copy thereof. A courtesy copy of any objection or response or
request for extension of time shall be furnished to the
District Judge at the time of filing. Timely objections will
be considered by the District Judge before the Judge makes a
PARTY'S FAILURE TO FILE WRITTEN OBJECTIONS TO THE
PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED
IN THIS REPORT WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ITS
SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF
PLAIN ERROR, FROM ATTACKING ON APPEAL THE UNOBJECTED-TO
PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY
THE DISTRICT JUDGE.
 This report and recommendation itself
provides plaintiff with further notice of its