United States District Court, W.D. Louisiana, Shreveport Division
MARIE D. MILLER
CADDO PARISH SCHOOL BOARD
REPORT AND RECOMMENDATION
L.HAYES, UNITED STATES MAGISTRATE JUDGE.
November 20, 2018, the court issued an order requiring the
parties to meet and prepare a Rule 26(f) case management
report. (Nov. 20, 2018, Order [doc. # 12]). The court also
set a telephone scheduling conference for 11:00 a.m. on
December 20, 2018. Id.
however, failed to participate in the preparation of the Rule
26(f) report. See Rule 26(f) Case Mgmt. Report [doc.
# 13]. In addition, she neither provided defense counsel with
a telephone number for the Rule 16(b) conference,
otherwise contacted the court on her own at the appointed
date and time.
the court ordered plaintiff to show cause on or before
January 7, 2019, why her complaint should not be DISMISSED
with prejudice for failure to comply with an order of this
court and/or to appear at the scheduling conference. (Dec.
20, 2018, Order [doc. # 14]). The court cautioned plaintiff
that her continued failure to respond to court orders would
serve as her tacit acknowledgment that she no longer wished
to pursue the matter. Id.
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. Also, as
plaintiff is proceeding in forma pauperis, it is
unlikely that she enjoys sufficient means to fund an
alternative monetary sanction. Moreover, dismissal with
prejudice may be the least sanction where, as here, there is
every indication that plaintiff no longer wishes to pursue
her cause of action. Finally, plaintiff's unrepentant
flaunting of court orders reflects her own contumaciouness or
“stubborn resistance to authority” which is
personally attributable to her as a litigant unrepresented by
foregoing reasons, IT IS RECOMMENDED that plaintiff's
complaint be DISMISSED WITH PREJUDICE in accordance with the
provisions of 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.