United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.
the court is a motion to dismiss pursuant to Rules 37(d) and
41(b) of the Federal Rules of Civil Procedure filed by
defendant CB&I LLC (hereafter “CB&I”).
Doc. 25. The motion is unopposed. This motion has been
referred to the undersigned for review, report, and
recommendation in accordance with the provisions of 28 U.S.C.
reasons stated below, IT IS RECOMMENDED that
the motion be GRANTED and that all claims be
DISMISSED WITH PREJUDICE.
January 3, 2018, plaintiff, Danny Rogers, filed suit in the
14th Judicial District Court, Calcasieu Parish,
Louisiana, against his former employer, CB&I, alleging it
had not paid him in full for work he performed. Doc. 1, att.
1, pp. 5-8. The suit was removed to this court on February 9,
2018. Doc. 1. After removal, plaintiff was granted leave to
amend his complaint [doc. 10] and a scheduling conference was
set. Doc. 13. At the October 4, 2018 scheduling conference
counsel for plaintiff indicated her client was being
unresponsive to her attempts to communicate with him to
prepare for the case. Doc. 15. Accordingly, the scheduling
conference was terminated and plaintiff was ordered to
communicate with his attorneys within seven (7) days; within
the order were various explicit warnings as to potential
repercussions that could result if plaintiff failed to
did not communicate with his attorneys within seven (7) days
of the court's order. Plaintiff's attorneys filed
motions to withdraw citing a breakdown in attorney-client
communications [docs. 16, 18] and plaintiff's failure to
comply with the court's order. Doc. 18. The motions were
set to be heard November 13, 2018 [docs. 17, 19], and
plaintiff was notified his personal participation in the
hearing was mandatory. See Doc. 17.
November 13, 2018, although plaintiff's counsel claimed
attempts were made to ensure plaintiff's personal
participation in the hearing, plaintiff did not take part.
Doc. 20. The motions to withdraw filed by plaintiff's
attorneys were granted. Docs. 23, 24. On April 5, 2019,
CB&I filed the instant motion to dismiss pursuant to
Rules 37(d) and 41(b) of the Federal Rules of Civil
Procedure. Doc. 25. On the same day, CB&I also filed a
motion for an order extending the dispositive motion deadline
in this matter. Doc. 26. The latter motion was set to be
heard on April 16, 2019. Doc. 28. In the order setting this
hearing the court referred to its earlier warnings regarding
plaintiff's failure to communicate with his attorneys
[doc. 15], it reminded plaintiff of his obligations as a
pro se litigant, and it issued the following notice:
Plaintiff is ordered to contact counsel for defendant on or
before 4/12/2019 to discuss outstanding discovery and how he
may participate telephonically in the hearing set for
4/16/2019, which telephone conference is to be arranged by
defendant. Plaintiff is hereby put on notice that
his failure to contact counsel for defendant as ordered
and/or his failure to participate in the telephone conference
set before the undersigned on 4/16/2019 will result in a
Report and Recommendation being made to the district court
that this matter be dismissed for plaintiff's failure to
abide by the rules and orders of this court.
Plaintiff will receive no additional warning.
Id. (emphasis in original). On April 16, 2019, the
hearing was held; plaintiff did not contact counsel for
defendant or participate in the hearing. Doc. 29.
Rules of Civil Procedure Rule 41(b) permits dismissal of
claims “[i]f the plaintiff fails to prosecute or to
comply with . . . a court order . . .” The district
court can dismiss an action upon motion of a defendant or on
its own motion. Berry v. CIGNA/RSI-CIGNA, 975 F.2d
1188, 1190-91 (5th Cir. 1992). A dismissal under this rule
“operates as an adjudication on the merits.”
Fed.R.Civ.P. 41(b). Rule 41(b) dismissals with prejudice are
proper upon a showing of “a clear record of delay or
contumacious conduct by the plaintiff” and “where
lessor sanctions would not serve the best interest of
justice.” Rogers v. Kroger Co., 669 F.2d 317,
320 (5th Cir. 1982) (citations omitted). Although not
required in every case, the court “usually”
considers aggravating factors such as “the extent to
which the plaintiff, as distinguished from his counsel, was
personally responsible for the delay, the degree of actual
prejudice to the defendant, and whether the delay was the
result of intentional conduct.” Sealed Appellant v.
Sealed Appellee, 452 F.3d 415, 418 (5th Cir. 2006)
(quoting Rogers, 669 F.2d at 320).“[A]
[d]istrict [c]ourt may dismiss a complaint for failure to
prosecute even without affording notice of its intention to
do so . . .” Link v. Wabash R.R.Co., 82 S.Ct.
1386, 1390 (1962).
support of its motion to dismiss pursuant to Rules 37(d) and
41(b) of the Federal Rules of Civil Procedure CB&I cites
plaintiff's failure to comply with court orders and also
alleges plaintiff has failed to respond to various discovery
requests made by CB&I. Doc. 25, att. 1. We find ample
reason to dismiss plaintiff's complaint pursuant to Rule
41(b) alone. Plaintiff was afforded explicit notice of our
intention to dismiss his complaint if he “fail[ed] to
contact the counsel for defendant as ordered and/or [he]
fail[ed] to participate in the [hearing] set before [us] on
4/16/2019.” Doc. 28. A clear record of delay is present
here because plaintiff has failed to communicate with his
attorneys, CB&I, and ...