United States District Court, E.D. Louisiana
ORDER AND REASONS
the Court are plaintiff Geraldine Dunn's motion for
relief and/or reconsideration (Rec. Doc. 64), defendant
Apache Industrial Services, Inc.'s (“Apache”)
response (Rec. Doc. 66), and plaintiff's reply (Rec. Doc.
70). For the reasons set forth below, IT IS
ORDERED that plaintiff's motion for relief
and/or reconsideration is GRANTED;
IS FURTHER ORDERED that the previously issued
dismissal order at record document 63 is
IS FURTHER ORDERED that a telephone scheduling
conference be held on Thursday, August 8, 2019, at
9:30 a.m before the Case Manager, Kimberly County. Parties
shall CALL IN using the phone number (888) 557-8511 and
access code 5654551; and
IS FURTHER ORDERED that for her acknowledged
non-compliance with court orders, plaintiff's counsel
shall be sanctioned $200.00, payable to the Clerk of Court,
and due no later than August 16,
AND PROCEDURAL HISTORY
was employed as a bus driver and painter for Apache.
See Rec. Doc. 1 at 2. She filed a complaint alleging
Apache had discriminated against her, retaliated against her,
and wrongfully terminated her, in violation of federal
February 26, 2019, the Court ordered that a telephone
scheduling conference be held for March 8, 2019, at 9:00 a.m.
See Rec. Doc. 59. On March 8, 2019, counsel for
plaintiff failed to call in to the conference and could not
be reached by the Court at the telephone number on record.
See Rec. Doc. 62. The Court issued an order
resetting the scheduling conference for March 22, 2019, at
9:15 a.m., and further ordered counsel for plaintiff to
contact the undersigned's case manager to provide a
telephone number where she could be reached. See Id.
The Court warned that failure to comply with this order could
result in sanctions, including dismissal. See Id.
Counsel for plaintiff did not contact the case manager to
provide a telephone number. See Rec. Doc. 63. On
March 22, 2019, counsel for plaintiff again failed to call in
to the conference and could not be reached by the Court at
the telephone number on record. See Id. Accordingly,
the Court dismissed plaintiff's case without prejudice.
April 4, 2019, counsel for plaintiff filed a motion for
relief and/or reconsideration of the Court's dismissal.
See Rec. Doc. 64. On April 15, 2019, defendant filed
a response in opposition. See Rec. Doc. 66. On April
26, 2019, counsel for plaintiff filed a reply. See
Rec. Doc. 70.
to Federal Rule of Civil Procedure 60(b), the Court may
relieve a party or its legal representative from a final
judgment, order, or proceeding for, amongst other things,
mistake, inadvertence, surprise, excusable neglect, or any
other reason that justifies relief. See Fed. R. Civ.
P. 60(b)(1), (6). The issue here is whether the present
circumstances warrant relief from an order dismissing
plaintiff's case without prejudice due to her
counsel's failure to comply with court ordered scheduling
conferences on two occasions.
argues that the Court should deny plaintiff's motion for
relief because she is bound by the actions of her counsel,
that included a pattern of delay and contumacious conduct.
Furthermore, defendant argues that lesser sanctions would be
futile; therefore, dismissal is warranted. See Rec.
Doc. 66 at 5-6.
argues that the Court should issue an order reinstating this
case because her counsel's conduct does not rises to a
level warranting the severe sanction of dismissal without
prejudice, particularly in light of likely time limitation
issues. Counsel for plaintiff acknowledges her actions were
not in compliance with noted scheduling orders. She contends
her phone number on record was correct, but there was an
issue with her virtual phone number. She states that issue
has been since resolved. See Rec. Doc. 64-1 at 5-6;
see also Rec Doc. 70 at 3-4.
a case without prejudice where applicable statute of
limitations are likely to bar future litigation is the same
as dismissing the case with prejudice. See Gray v.
Fidelity Acceptance Corp., 634 F.2d 226, 227 (5th Cir.
1981). Dismissal with prejudice is warranted as an extreme
sanction where there is a clear record of delay or
contumacious conduct by the plaintiff and lesser sanctions
would not better serve the interests of justice. See
id.; see, e.g., Callip v. Harris County
Child Welfare Dep't, 757 F.2d 1513 (5th Cir.
1985)(affirming dismissal because plaintiff's counsel
caused delay at every stage of the proceedings); Wilson
v. James Indus. Contrs., 2016 U.S. Dist. LEXIS 181663,
at *8 (E.D. La. 2016)(holding that dismissal was appropriate
because plaintiff failed to participate in his own case and
offered no reason for failing to do so). The Fifth Circuit
tends to affirm dismissals with prejudice after finding
evidence of at least one ...