United States District Court, W.D. Louisiana, Monroe Division
HAILEY RAY, ET AL.
VOITH PAPER FABRIC & ROLL SYSTEMS, INC.
A. DOUGHTY JUDGE
REPORT AND RECOMMENDATION
L. HAYES UNITED STATES MAGISTRATE JUDGE
3, 2019, plaintiffs' counsel filed a motion to withdraw
from the above-captioned matter. [doc. # 10]. On July 8,
2019, the court granted the motion and ordered plaintiffs,
within 30 days, either to enroll new counsel, or to notify
the court, in writing, that they intended to proceed pro se.
[doc. # 11]. The foregoing deadline has lapsed, with no
response from plaintiffs.
on August 20, 2019, the court ordered plaintiffs to show
cause on or before August 27, 2019, why their complaint
should not be DISMISSED for failure to comply with an order
of this court. (Aug. 20, 2019, Show Cause Order [doc. #15]).
The court cautioned plaintiffs that their continued failure
to respond to court orders would serve as their tacit
acknowledgement that they no longer wished to pursue this
latest deadline has passed, without any further submission or
response from plaintiffs.
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).
dismissal with prejudice is “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.
consideration, the court finds that this matter is subject to
dismissal for failure to prosecute/heed orders of the court.
Fed.R.Civ.P. 41(b). The court also finds that the
requirements for dismissal with prejudice are satisfied in
this case. Plaintiffs have ignored two court orders and are
not actively pursuing the case. Thus, no lesser sanction better
serves the interest of justice. In addition, plaintiffs'
failure to respond to court orders reflects their own
“stubborn resistance to authority” that is
personally attributable to them as litigants unrepresented by
foregoing reasons, 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.