United States District Court, E.D. Louisiana
FINDINGS AND RECOMMENDATION
C. WILKINSON, JR UNITED STATES MAGISTRATE JUDGE
Horton was employed as a clean-up worker along the Alabama
Gulf coast, where he also lived, after the BP/Deepwater
Horizon explosion and oil spill on April 20, 2010. Complaint,
Record Doc. No. 1. Plaintiff filed his complaint pursuant to
the Back-End Litigation Option (“BELO”)
provisions of the BP/Deepwater Horizon Medical Benefits Class
Action Settlement Agreement (“Medical Settlement
Agreement”). Record Doc. Nos. 6427-1 and 8218 in MDL
No. 10-md-2179. As a member of the BELO settlement class,
plaintiff seeks compensatory damages and related costs for
later-manifested physical conditions that he allegedly
suffered as a result of exposure to substances released after
the oil spill. Record Doc. No. 1 at ¶ 3.
former counsel filed a motion to withdraw as counsel of
record on November 12, 2019, which was granted. Record Doc.
Nos. 6, 7. In that motion, counsel noted that he had been
unable to communicate with plaintiff either by phone or
email, and wished to withdraw because he was unable to
represent plaintiff effectively due to this lack of contact
and cooperation. Record Doc. No. 6 at pp. 1-2. Additionally,
counsel stated in his motion that he “spoke to
plaintiff's wife . . . several weeks ago whereas
[p]laintiff expressed that he was overwhelmed and has not
accepted calls since that conversation or responded to any
attempts of contact.” Id. at p. 1.
order dated November 13, 2019, the court ordered plaintiff to
appear for a show cause hearing on December 4, 2019, to
discuss the status of his future representation and/or
whether he intended to proceed in proper person. Record Doc.
No. 8. Plaintiff was warned that failure to appear may result
in a recommendation that his complaint be dismissed for
failure to prosecute. Id. Plaintiff failed to appear
on that date. Record Doc. No. 10.
defense counsel has advised, Record Doc. No. 26126 in
10-md-2179 and Record Doc. No. 9 in the captioned case, that
plaintiff has failed to provide initial disclosures as
required by BELO Case Management Order No. 1. This failure is
no doubt attributable to plaintiff's failure to
communicate with his former counsel.
41(b) of the Federal Rules of Civil Procedure provides that a
court may in its discretion dismiss any action based on the
failure of the plaintiff to prosecute or comply with any
order of the court. Hulsey v. Texas, 929 F.2d 168,
171 (5th Cir. 1991); McCullough v. Lynaugh, 835 F.2d
1126, 1127 (5th Cir. 1988); Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 749 (5th Cir. 1987).
In applying the sanction of dismissal, courts have
traditionally considered the extent to which the plaintiff,
rather than his counsel, is responsible for the delay or
failure to comply with the court's order. Markwell v.
Cnty. of Bexar, 878 F.2d 899, 902 (5th Cir. 1989);
Price v. McGlathery, 792 F.2d 472, 474-75 (5th Cir.
1986). Since the plaintiff in this case is now in proper
person, it is apparent that this court must weigh his actions
alone in considering dismissal of this action under Rule
41(b). A pro se litigant is not exempt from compliance with
relevant rules of procedural and substantive law. Birl v.
Estelle, 660 F.2d 592, 593 (5th Cir. 1981); Edwards
v. Harris Cnty. Sheriff's Ofc., 864 F.Supp. 633, 637
(S.D. Tex. 1994). A pro se litigant who fails to comply with
procedural rules has the burden of establishing excusable
neglect, which is a strict standard requiring proof of more
than mere ignorance. Kersh v. Derozier, 851 F.2d
1509, 1512 (5th Cir. 1988); Birl, 660 F.2d at 593.
court has attempted through its orders to have plaintiff
provide it with the information necessary to prosecute
plaintiff's case. Plaintiff's failure to comply with
the court's August 6, 2019 and November 13, 2019 orders,
Record Doc. Nos. 3 and 8, coupled with his counsel's
withdrawal due to plaintiff's complete failure to
communicate with him, Record Doc. Nos. 6 and 7, clearly
reflects a failure on the part of plaintiff to prosecute.
effort to afford plaintiff one final opportunity to respond,
I have issued these findings and recommendation to the
presiding United States District Judge. Plaintiff is advised
that he may object to the Magistrate Judge's proposed
Findings and Recommendation within fourteen (14) days from
the date of service of this report. The plaintiff is advised
that any objection should be in writing and filed with the
Clerk of the United States District Court, Eastern District
of Louisiana, 500 Poydras Street, New Orleans, Louisiana
70130, on a written document containing the caption of this
lawsuit. It is suggested to the plaintiff that his objection
should contain a short summary of the reasons that plaintiff
failed to comply with the court's previous orders. It is
further suggested that the plaintiff should also provide the
court with the information requested in the court's
previous orders as detailed above.
is advised that failure to file written objections to the
Magistrate Judge's Findings and Recommendation may and
probably will result in dismissal of plaintiff s suit. A
party's failure to file written objections to the
proposed findings, conclusions, and recommendation in a
magistrate judge's report and recommendation within
fourteen (14) days after being served with a copy shall bar
that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district
court, provided that the party has been served with notice
that such consequences will result from a failure to object.
Douglass v. United Servs. Auto. Ass'n, 79 F.3d
1415, 1430 (5th Cir. 1996) (en banc) (citing 28 U.S.C. §
IS RECOMMENDED that, if plaintiff does not file
written objections to these Findings and Recommendation, the
claims of Rex Horton be dismissed with prejudice for failure