Stinson v. Dolgencorp L L C

Filing 18

MEMORANDUM RULING re 12 MOTION to Dismiss For Failure to Comply With A Court Order filed by Dolgencorp L L C. Signed by Judge S Maurice Hicks on 11/10/2014. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

MARY C. STINSON

CIVIL ACTION NO. 14-0563

VERSUS

JUDGE S. MAURICE HICKS, JR.

DOLGENCORP, LLC

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Before the Court is a Motion to Dismiss for Failure to Comply with a Court Order
(Record Document 12) filed by Defendant Dolgencorp, LLC (“Dollar General”). The motion
was filed pursuant to Federal Rules of Civil Procedure 41(b) and 37(b). See id. Dollar
General also seeks reasonable attorney fees and costs for having to file the instant motion.
See id. To date, the motion is unopposed.
Background
This suit was originally filed in state court on December 23, 2013. See Record
Document 1-2. Dollar General timely removed the matter to this Court and a scheduling
conference was held on April 30, 2014. See Record Documents 1 & 8. A scheduling order
was entered and the case was set for jury trial on March 16, 2015. See Record Document 9.
The scheduling order set forth discovery deadlines. See id. After Plaintiff Mary C.
Stinson (“Stinson”) failed to comply with many of those deadlines, Dollar General filed a
Motion to Compel Stinson’s discovery responses and witness list. See Record Document 10.
On August 15, 2014, this Court issued an Order granting Dollar General’s Motion to Compel
and ordered Stinson’s discovery responses and witness list be produced within 7 days of the
date of the Order. See Record Document 11. To date, Dollar General has not received

Stinson’s discovery responses or witness list. Dollar General filed the instant motion on
September 8, 2014, seeking dismissal of Stinson’s case for failure to prosecute and for
failure to comply with court orders. See Record Document 12.
On October 7, 2014, this Court issued a minute entry setting a show cause hearing.
See Record Document 14. The minute entry provided, in pertinent part:
At the hearing, Plaintiff shall show cause why her lawsuit should not be
dismissed for failure to comply with the court’s discovery order and scheduling
order. Alternatively, in lieu of appearing at the show cause hearing, Plaintiff
may notify the court no later than October 22, 2014 that she wishes to dismiss
her lawsuit voluntarily.
Id. Stinson did not notify the Court that she wished to dismiss her lawsuit voluntarily. See
Record Documents 15 & 16. Neither Stinson nor her counsel appeared at the show cause
hearing set on October 29, 2014. See id. At the conclusion of the hearing, Magistrate Judge
Hornsby recommended that Stinson’s case be dismissed. See id. Counsel for Dollar
General orally moved for attorney fees and expenses for having to appear at the show cause
hearing.
Legal Analysis
Rule 16(f) provides for the imposition of sanctions for violations of scheduling and
pretrial orders of the court as follows:
(f)

Sanctions.

(1)

In General. On motion or on its own, the court may issue any just orders,
including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its
attorney:
(A)

fails to appear at a scheduling or other pretrial conference;

(B)

is substantially unprepared to participate – or does not
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participate in good faith – in the conference; or
(C)

fails to obey a scheduling or other pretrial order.

Under Rule 37(b)(2)(A)(v), the district court is specifically authorized to dismiss a claim. See
F.D.I.C. v. Conner, 20 F.3d 1376, 1380 (5th Cir.1994). Rules 16 and 37 set forth the court’s
discretionary power to control the expeditious disposition of docketed cases. See Gayden
v. Galveston County, Texas, 178 F.R.D. 134 (S.D.Tx.1998).
In addition, Federal Rule of Civil Procedure 41(b) authorizes dismissal of a claim with
prejudice for failure to prosecute or for failing to comply with a court order. Such dismissal
may be pursuant to a defense motion or upon the court’s own motion. See Colle v. Brazos
County, Texas, 981 F.2d 237, 242-243 (5th Cir.1993), citing Lopez v. Aransas County Ind.
Sch. Dist., 570 F.2d 541, 544 (5th Cir.1978); Link v. Wabash R.R. Co., 370 U.S. 626, 630631, 82 S.Ct. 1386, 1388-1389 (1962). The authority for such dismissal is based on the
court’s power to manage and administer its own affairs, and to ensure the orderly and
expeditious disposition of cases. See Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190 (5th
Cir.1992); Colle, 981 F.2d at 242-243. The dismissal will be upheld on appeal unless it can
be said that the court abused its discretion. See Colle, supra.
Dismissal with prejudice for failure to prosecute is an extreme sanction, to be used only
when the plaintiff’s conduct has threatened the integrity of the judicial process in a way that
leaves the court no choice but to deny the plaintiff its benefits. See Berry, 975 F.2d at 1191;
Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir.1982). Dismissal with prejudice is
appropriate only where: (1) there is a clear record of delay or contumacious conduct by the
plaintiff; and (2) the court has expressly determined that lesser sanctions would not prompt
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diligent prosecution, or the record shows that the court employed lesser sanctions which
proved to be futile. See Colle, 981 F.2d at 237. In most cases, where the Fifth Circuit
affirmed dismissal with prejudice, the 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. See id.
As detailed above, Stinson has been inactive in pursuing her claim since filing the
lawsuit. She has not issued any written discovery and she has not sought to take any
discovery depositions. She has failed to comply with court orders, even after several chances
to comply. She failed to appear at the show cause hearing. Dollar General’s defense has
been prejudiced because it has not been able to review Stinson’s discovery responses,
depose her, issue the necessary subpoenas, depose the necessary doctors and/or retain the
necessary experts to prepare its defense for the March 2015 trial. Thus, this Court finds that
dismissal of Stinson’s claims with prejudice is appropriate. The Court also finds that
reasonable attorney fees and costs associated with the filing of the Motion to Dismiss and for
defense counsel having to appear at the show cause hearing are warranted in this instance.
Conclusion
Based on the foregoing analysis, Defendant Dolgencorp, LLC’s Motion to Dismiss for
Failure to Comply with a Court Order (Record Document 12) is GRANTED. All of Stinson’s
claims are DISMISSED WITH PREJUDICE for failure to prosecute and for failure to comply
with court orders. Defendant Dolgencorp, LLC is further entitled to reasonable attorney fees
and costs associated with the filing of the Motion to Dismiss and appearing at the show cause
hearing.
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IT IS SO ORDERED.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 10th day of November,
2014.

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