St. Romain v. Governor's Office of Homeland Security and Emergency Preparedness et al

Filing 97

ORDER of DISMISSAL: For the reasons set here within, this case is DISMISSED WITH PREJUDICE. The jury trial currently set for November 13,2017 is CANCELLED. Any pending motions are DENIED as MOOT. Defendants shall submit a proposed Judgment for the Court's consideration within thirty (30) days of this Order that conforms with all the Rulings in the matter. Signed by Judge Shelly D. Dick on 10/25/2017. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JOSEPH ST. ROMAIN, JR.

CIVIL ACTION

VERSUS

14-660-SDD-RLB

GOVERNOR’S OFFICE OF HOMELAND
SECURITY AND EMERGENCY
PREPAREDNESS, ET AL.

ORDER OF DISMISSAL
This matter came on October 24, 2017 for a Final Pre-trial Conference to discuss
the jury trial set to begin on November 13, 2017. Nearly three years after the filing of this
lawsuit, and well after the close of discovery and the resolution of dispositive motions,
counsel for Plaintiff, Joseph St. Romain, Jr. (“Plaintiff”) filed a Motion to Withdraw.1 On
September 28, 2017, the Court held a hearing on counsel’s motion wherein it was
determined that there was good cause for the withdrawal of Plaintiff’s counsel.2 The Court
strongly urged Plaintiff to retain new counsel as soon as possible but also advised Plaintiff
that, unless and until such time that new counsel enrolled in this matter, Plaintiff would be
proceeding pro se, and all previously set deadlines remained in effect.

The Clerk of

Court for the Middle District of Louisiana was instructed to transmit to Plaintiff all filings in
this matter both electronically and by mail.3

1

Rec. Doc. No. 86.
See Rec. Doc. No. 89.
3
Id.
2

Document Number: 42451 
Page 1 of 4 

JURY

Since that hearing, Plaintiff has not complied with any orders or deadlines
associated with this case. Plaintiff was required to file an Affidavit of Settlement Efforts
by October 2, 2017. Plaintiff failed to comply with this order, and Defendants’ Affidavit of
Settlement Efforts stated that Defendants had extended a settlement offer to Plaintiff with
no response.4 Next, Plaintiff was required to file a Joint Proposed Pretrial Order on
October 17, 2017. Plaintiff failed to comply with this order, and Defendants filed the
Proposed Pretrial Order with the statement: “As of the time of this filing, undersigned
counsel has been unable to reach Mr. St. Romain.”5 Plaintiff’s proposed Jury Instructions,
Verdict Form, and requested Voir Dire were ordered to be filed on or before October 23,
2017; again, Plaintiff failed to comply with the Court’s order to file any of these documents.
On October 24, 2017, Plaintiff failed to appear at the Final Pre-Trial Conference
set for 2:30 p.m. Defense counsel appeared and advised the Court of numerous attempts
to reach Plaintiff, but no contact was ever made.6
“Under Rule 41(b) of the Federal Rules of Civil Procedure, a district court may
dismiss an action based on the failure of the plaintiff to prosecute or to comply with any
order of the court.”7 “Pro se litigants are not exempt from compliance with the rules of
procedure.”8 Thus, even when an individual represents himself, all parties have the
responsibility to comply with court orders. While dismissal under either rule is a harsh

4

Rec. Doc. No. 91.
Rec. Doc. No. 92.
6
Defense counsel advised that he had called Plaintiff about inserts for the Joint Pre-Trial order and left a
message. Plaintiff called Defense counsel back on October 16, but Defense counsel could not answer at
the time. Defense counsel returned Plaintiff’s call on October 17, 19, and 23, but all calls went straight to
Plaintiff’s voicemail, and Plaintiff has not returned any of these calls.
7
See Fed.R.Civ.P. 41(b); see also Lopez v. Aransas County Indep. Sch. Dist., 570 F.2d 541, 544 (5th
Cir. 1978); Beard v. Experian Information Solutions Inc., 214 Fed.Appx. 459, 462 (5th Cir. 2007).
8
Beard at 462 (citing Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)).
5

Document Number: 42451 
Page 2 of 4 

sanction, it is nonetheless appropriate if a “clear record of delay or contumacious conduct
by the plaintiff exists and lesser sanctions would not serve the best interests of justice.”9
Ultimately, exercise of the power to dismiss is committed to the sound discretion of the
district courts.10
The Fifth Circuit has made clear that “[a] dismissal with prejudice ‘is an extreme
sanction that deprives the litigant of the opportunity to pursue his claim.’”11 Thus, the Fifth
Circuit has limited the court's discretion in dismissing cases with prejudice.12 The Fifth
Circuit affirms dismissals with prejudice for failure to prosecute only when: (1) there is a
clear record of delay or contumacious conduct by the plaintiff, and (2) the district court
has expressly determined that lesser sanctions would not prompt diligent prosecution, or
the record shows that the district court employed lesser sanctions that proved to be
futile.13 Additionally, in most cases where the Fifth Circuit has affirmed dismissals with
prejudice, the appellate court found 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.”14
Here, because Plaintiff was pro se at the time of every act of non-compliance, he
has no counsel to blame for his actions.15 As set forth above, the record reflects that,
from the moment his previous counsel withdrew and Plaintiff took over his case, he has
repeatedly failed to comply with the Court's orders and deadlines, even after the Court’s
9

Price v. McGlathery, 792 F.2d 472, 474 (5th Cir. 1986)(internal citations omitted).
Lopez, 570 F.2d at 544.
11
Berry v. CIGNA/RSI–CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992), (citing Callip v. Harris County Child
Welfare Dept., 757 F.2d 1513, 1519 (5th Cir. 1985)).
12
Berry, 975 F.2d at 1191(citing Price, 792 F.2d at 474).
13
Berry, 975 F.2d at 1191.
14
Price, 792 F.2d at 474.
15
See Pegues v. PGW Auto Glass, L.L.C., 451 Fed.Appx. 417, 418 (5th Cir. 2011).
10

Document Number: 42451 
Page 3 of 4 

specific directives regarding the looming deadlines associated with this case. While the
Court is loath to dismiss this action with prejudice, considering that trial is less than three
weeks away and Plaintiff has made no efforts to prosecute his case, the Court is left
without a less harsh remedy.16
Thus, after consideration of the record, this Court concludes that the delay in this
case has been occasioned by Plaintiff himself and not by an attorney, and the delay
caused by Plaintiff has actually prejudiced Defendant. The trial is less than three weeks
away, and Plaintiff has utterly and completely failed to cooperate with all trial-related
deadlines and appearances. Thus, the Court concludes this case should also be
dismissed under Rule 37(d) for Plaintiff's repeated failures to comply with Court orders.
Therefore, for the reasons set forth above, this case is DISMISSED WITH
PREJUDICE. The jury trial currently set for November 13, 2017 is CANCELLED. Any
pending motions are DENIED as MOOT. Defendants shall submit a proposed Judgment
for the Court’s consideration within thirty (30) days of this Order that conforms with all
Rulings in this matter.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 25th day of October, 2017.

S

________________________________
SHELLY D. DICK, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

16

There is no reason to believe that Plaintiff would appear for a Show Cause Hearing considering he has
failed to appear and or comply with any other Court orders or deadlines.

Document Number: 42451 
Page 4 of 4