United States District Court, W.D. Louisiana, Shreveport Division
A. DOUGHTY JUDGE.
REPORT AND RECOMMENDATION
L. Hayes United States Magistrate Judge.
November 7, 2018, the court permitted plaintiff's
attorney to withdraw from the above-captioned matter. (Nov.
7, 2018, [doc. # 21]). The court simultaneously ordered
plaintiff to enroll new counsel, or to notify the court in
writing of his intent to proceed pro se, within 30 days from
the date of that order. Id. Plaintiff obtained three
extensions of the foregoing deadline, such that he ultimately
had until March 12, 2019, in which to comply. See
doc. #s 22-25, 29-31. Following the latest extension, the
court cautioned plaintiff that no further extensions would be
granted. [doc. # 31]. Nonetheless, the latest deadline has
since lapsed, with no response from 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 eventually
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.”
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,
dismissal of the case may be the least sanction where, as
here, there is every indication that he no longer wishes to
pursue his cause of action. Finally, plaintiff's
unrepentant flaunting of court orders reflects his own
contumaciouness or “stubborn resistance to
authority” which is personally attributable to him 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.
 Certainly, if plaintiff disputes this
inference, he may so demonstrate in his objection to the
instant report and recommendation.
 This report and recommendation itself
provides plaintiff with further notice of his