Burbank v. HRI Properties

Filing 29

ORDER & REASONS: ORDERED that 27 Motion to Dismiss Pursuant to Federal Ruleof Civil Procedure 41(b) is GRANTED and the Plaintiff's claim pursuant to theEqual Pay Act, 29 U.S.C.A. § 206(d) is DISMISSED WITH PREJUDICE for failure to prosecute under Rule 41(b). Signed by Magistrate Judge Karen Wells Roby. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KIMBERLY L. BURBANK

CIVIL ACTION

VERSUS

NO:

HRI PROPERTIES

UNITED STATES MAGISTRATE
JUDGE KAREN WELLS ROBY

14-1556

ORDER AND REASONS
Before the Court is Defendant’s Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 41(b) (R. Doc. 27), filed by the Defendant, Historic Restoration, Incorporated
(incorrectly named as HRI Properties). The Defendant seeks a court order dismissing the claims
of the Plaintiff, Kimberly Burbank, for failure to prosecute and failure to comply with the
Court’s June 3, 2015, Order (R. Doc. 25). The motion is unopposed and was heard on the briefs
on July 29, 2015.
I.

Background
This action was instituted by the Plaintiff as a pro se litigant on July 3, 2014 against her

former employer for violating Title VII, 42 U.S.C. § 2000e, et seq., and the Equal Pay Act
(“EPA”), 29 U.S.C.A. § 206(d). See R. Doc. 1, at 1. The Defendant filed a motion to dismiss the
Plaintiff’s EPA claims and a motion for summary judgment on the Plaintiff’s Title VII claims.
See R. Doc. 7. The Plaintiff retained counsel and opposed the Defendant’s motion to dismiss and
motion for partial summary judgment. See R. Doc. 13.
On June 3, 2015, the Court granted the Defendant’s motion for partial summary judgment
on the Title VII claim finding that the Plaintiff executed a valid release and waived her Title VII
claims. See R. Doc. 25, p. 15. In considering the Defendant’s motion to dismiss the Plaintiff’s
EPA claims, the Court found that “Plaintiff’s complaint does not set forth any factual allegations.”

Id. at 16. The Court concluded that the “Plaintiff’s EPA claims should be dismissed for failure to
state a claim upon which relief can be granted.” Id.
However, the Court recognized that the Plaintiff filed her complaint as a pro se litigant and
granted the Plaintiff’s request for leave to amend her complaint to adequately allege a claim under
the EPA. Id. The Court granted the Plaintiff twenty (20) days, or until June 23, 2015, to file an
amended complaint. Id. The Plaintiff never filed the amended complaint.
In the instant motion, the Defendant seeks to dismiss the Plaintiff’s claims pursuant to 41(b)
for failure to prosecute and for failure to comply with the Court’s June 3, 2013, Order granting the
Plaintiff leave to amend her complaint.

II.

Standard of Review
Rule 41(b) of the Federal Rules of Civil Procedure (“Rules”) specifically provides that a

court may, in its discretion, dismiss a plaintiff’s claim for failure to prosecute or for failure to
comply with the Federal Rules of Civil Procedure or any order of the court. A Rule 41(b)
dismissal is considered an adjudication on the merits. Fed. R. Civ. P. 41(b). In determining
whether to dismiss a claim, courts have traditionally considered the extent to which the plaintiff,
rather than his counsel, has been responsible for any delay or failure to comply with a rule or
order. See, e.g., Markwell v. County of Bexar, 878 F.2d 899, 902 (5th Cir. 1989); Price v.
McGlathery, 792 F.2d 472, 474-75 (5th Cir. 1986); Silas v. Sears, Roebuck & Co., 586 F.2d 382,
385 (5th Cir. 1978); Ramsay v. Bailey, 531 F.2d 706, 708-09 (5th Cir. 1976).
III.

Analysis
The Defendant argues that although the Plaintiff was given latitude to amend her

complaint because it was filed pro se, she should still be required to follow the same rules of
procedure that governs other litigants. See R. Doc. 27-3, p. 2. The Defendant contends that the

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Plaintiff violated the Court’s June 3, 2015, Order by not filing the required amendment by June
23, 2015.1 Thus, the Defendant contends that dismissal is appropriate under Rule 41(b).
Courts have found that failure to comply with a court’s order granting leave to amend an
inadequate complaint is grounds for dismissal under Rule 41(b). Hampton v. Cox, No. CIV.A.
14-0535, 2014 WL 4975867, at *1 (W.D. La. Oct. 3, 2014) (finding that plaintiff’s failure to
comply with the court’s order to amend the complaint to only add factual allegations and no legal
analysis was grounds for dismissal); Robinson v. Cox, No. 3:13-CV-0963, 2013 WL 5522802, at
*1 (W.D. La. Oct. 2, 2013) (dismissing a 28 U.S.C. § 1983 claim for failure to comply with order
to amend after the court determined the claim was insufficient); Dubos Refinishers, Inc. v. St.
Paul Travelers Grp., No. CIV.A. 06-10068, 2007 WL 2071608, at *2 (E.D. La. July 17, 2007)
(dismissing plaintiff’s complaint under 41(b) for failure to comply with the Court’s order to
amend the complaint after granting a motion for more definite statement).
Here, the Court has already determined in its June 3, 2015 Order that the Plaintiff’s EPA
claim does not state a claim upon which relief can be granted. The Plaintiff’s claim was devoid
of any factual allegations and only made conclusory statements, which was not enough to
survive a motion to dismiss. The only reason the Plaintiff’s EPA claim was not dismissed along
with her Title VII claim is that she filed the complaint pro se and requested an opportunity to
amend the complaint. Now the Plaintiff has failed to seize the opportunity to re-allege the EPA
claim and has failed to oppose the pending motion to dismiss pursuant to Rule 41(b). Under
these circumstances, the Court is compelled to conclude that the Plaintiff’s claims should be
dismissed for failure to prosecute.

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The Court’s Order was signed on June 2, 2015, but the Order was not docketed into the record until June
3, 2015. Therefore, although the Defendant contends that the amended complaint was due June 22, 2015, or 20 days
after the Order was signed, the 20 day period began June 3, 2015 and the amended complaint was due June 23,
2015.
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IV.

Conclusion
Based on the foregoing,
IT IS ORDERED that the Defendant’s Motion to Dismiss Pursuant to Federal Rule

of Civil Procedure 41(b) (R. Doc. 27) is GRANTED and the Plaintiff’s claim pursuant to the
Equal Pay Act, 29 U.S.C.A. § 206(d) is DISMISSED WITH PREJUDICE for failure to prosecute
under Rule 41(b).

New Orleans, Louisiana, this 17th day of August 2015.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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