United States District Court, E.D. Louisiana
CHARLES GASPARD, ET AL.
THE BREAKFAST TOMS, ET AL.
REPORT AND RECOMMENDATION
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE.
about September 4, 2018, Charles Gaspard and Daveigh
Schwallier (collectively, "Plaintiffs"), initiated
this pro se proceeding by filing a civil complaint
against the Breakfast Toms and Cathy Chase (collectively,
"Defendants"). (Rec. doc. 1). Gaspard is presently
incarcerated at the Louisiana State Penitentiary in Angola,
Louisiana. The complaint alleges that he and Schwallier
formed a group on myspace.com with some of
Schwallier's friends, who identified themselves as
"The Breakfast Toms" (the majority of whom are
citizens of the State of California) and "two informal,
written, bilateral, onerous, commutative, nominate contracts,
that is, a principal contract of exchange, and an accessory
contract of compromise," including stipulated benefits
for certain third parties associated with the Breakfast Toms,
were entered into. Id. He further alleges that
Defendants failed to perform obligations as promised.
Id. He requests specific performance and monetary
his complaint, Gaspard filed a motion seeking to stay these
proceedings indefinitely because he is "unsure which
United States District Court for California is the proper
venue for the above-captioned matter." (Rec. doc. 1-2).
He states that on August 23, 2018, he mailed the same
complaint simultaneously to all four federal courts in
California, including all divisions within those
courts. He did so to ensure that
"Plaintiffs' claims in same matter will not be lost,
in the unlikely event that none of the six former said courts
is a, or the, proper venue for same matter."
Id. In the motion, Gaspard also cited his objection
to completing and filing a motion to proceed in forma
pauperis in the above-captioned matter, because he did
not wish to pay multiple filing fees for the duplicate
lawsuits. (Rec. doc. 1-2, p. 2).
notice dated September 12, 2018, the Clerk of Court required
Gaspard to submit the requisite filing fee or file a
certified application to proceed in forma pauperis
within 21 days. (Rec. doc. 2). On or about October 10, 2018,
Gaspard responded by filing a motion for extension of time.
(Rec. doc. 3). The undersigned granted him additional time to
comply with the Clerk of Court's notice, as requested,
until November 9, 2018. (Rec. doc. 4). Despite the additional
time provided, as of this date, Gaspard has not paid the full
filing fee or filed an application to proceed in forma
pauperis. Presumably, as was previously indicated,
Gaspard did not want to expend resources to proceed with
numerous duplicate lawsuits filed in both Louisiana and
Rule of Civil Procedure 41(b) provides that a court may, in
its discretion, dismiss any action based on the failure of
the plaintiff to prosecute or comply with any order of the
court. Hulsey v. Texas, 929 F.2d 168, 171
(5th Cir. 1991); McCullough v. Lynaugh,
835 F.2d 1126, 1127 (5th Cir. 1988); Brinkmann
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 749
(5th Cir. 1987). When contemplating dismissal,
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.
Markwell v. County of Bexar, 878 F.2d 899, 902
(5th Cir. 1989); Price v. McGlathery, 792
F.2d 472, 474-75 (5th Cir. 1986). Here, Gaspard is
proceeding in proper person and his actions plainly weigh in
favor of dismissal. A pro se litigant is not exempt
from compliance with relevant rules of procedural and
substantive law. Birl v. Estelle, 660 F.2d 592, 593
(5th Cir. 1981); Edwards v. Harris County
Sheriffs Dept, 864 F.Supp. 633, 637 (S. D. Tex. 1994). A
pro se litigant who fails to comply with procedural
rules has the burden of establishing excusable neglect.
Kersh v. Derozier, 851 F.2d 1509, 1512
(5th Cir. 1988); Birl, 660 F.2d at 593.
Gaspard has made no such showing.
Court has instructed Gaspard to remedy the filing fee
deficiency and afforded him ample time to correct the
deficiency. He has not done so. Gaspard has flagrantly
ignored the procedural requirements in this case. His
assertions show that he wants to file (and indefinitely stay)
this lawsuit merely as a protective measure and avoid paying
the associated filing fees. The Court construes this as a
failure on his part to prosecute and recommends that the
action be dismissed.
foregoing reasons, it is RECOMMENDED that
Plaintiffs' complaint be DISMISSED WITHOUT
PREJUDICE for failure to prosecute.
party's failure to file written objections to the
proposed findings, conclusions, and recommendation in a
magistrate judge's report and recommendation within
fourteen (14) days after being served with a copy shall bar
that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district
court, provided that the party has been served with notice
that such consequences will result from a failure to object.
Douglass v. United Servs. Auto. Ass'n, 79 F.3d
1415, 1430 (5th Cir. l996)(en
banc)(citing 28 U.S.C.
 Although it appears that Gaspard has
attempted to join Schwallier as a co-Plaintiff in this
matter, the latter has not signed the complaint or any other
filings in this case. Nor does the Court know if the
co-Plaintiff is also incarcerated in the State of Louisiana
or where the co-Plaintiff resides because no mailing address
was provided for Schwallier.
 The Court's research reveals that
the identical suit was indeed filed in the United States
District Court for the Southern District of California (San
Diego), No. 18-CV-02041-BAS-LL; the United States District
Court for the Northern District of California (San Jose), No.
18-CV-05516-LHK (PR); the United States District Court for
the Eastern District of California (Fresno), No.
18-CV-01199-AWI-EPG; and the Eastern District (Sacramento),
No. 18-CV-2397-TLN-CKD; and the United States District Court
for the Western District of California (Los Angeles), No.