Vegas v. CMH Homes, Inc. et al

Filing 32

ORDER granting in part and denying in part 25 Motion to Dismiss for Lack of Prosecution; granting in part and denying in part 27 Motion to Dismiss; and Dismissing Plaintiff's Claims without prejudice for failure to prosecute. Signed by District Judge Halil S. Ozerden on 7/29/2022 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
PAMELA A. VEGAS
v.
CMH HOMES, INC., a Tennessee
Corporation d/b/a Clayton Homes
Gulfport, et al.

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PLAINTIFF
Civil No. 1:18cv260-HSO-RHWR

DEFENDANTS

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT CMH HOMES, INC.’S MOTION [25] TO DISMISS; GRANTING
IN PART AND DENYING IN PART DEFENDANT PRECISION MOVERS,
INC.’S MOTION [27] TO DISMISS; AND DISMISSING PLAINTIFF’S
CLAIMS WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE
BEFORE THE COURT are Defendant CMH Homes, Inc.’s Motion [25] to
Dismiss and Defendant Precision Movers, Inc.’s Motion [27] to Dismiss. Both
Motions [25], [27] are fully briefed. For the reasons that follow, the Court will
grant both Defendants’ Motions [25], [27] in part, to the extent they ask the Court
to dismiss Plaintiff’s claims for failure to prosecute, and deny the Motions [25], [27]
in part, to the extent they seek dismissal with prejudice.

Plaintiff’s claims against

Defendants will be dismissed without prejudice for failure to prosecute.
I. BACKGROUND
The claims in this case arise from Plaintiff Pamela A. Vegas’ (“Plaintiff” or
“Ms. Vegas”) purchase of a manufactured home from Defendant CMH Homes, Inc.,
a Tennessee corporation d/b/a Clayton Homes Gulfport (“CMH”), and the setup of
the home by Defendant Precision Movers, Inc., a Mississippi corporation

(“Precision”).

See Compl. [1-2] at 9-10.

In connection with the purchase of the

manufactured home, Plaintiff executed certain agreements with CMH, including a
Binding Dispute Resolution Agreement (“BDRA”). See BDRA [17-4] at 1-4.
On June 14, 2018, Plaintiff filed suit against CMH and Precision in the
Circuit Court of Pearl River County, Mississippi, advancing claims for breach of
contract, breach of express warranties, breach of implied warranties, and
negligence, as well as claims under the Magnuson-Moss Warranty Act, 15 U.S.C. §§
2301, et seq. See Compl. [1-1] at 7-8, 12-16. CMH removed the case to this Court,
see Notice [1], and then filed a Motion [8] to Compel Mediation/Arbitration and for
Stay, in which Precision joined [9], [12]. The Court granted the Motion [8] as
unopposed to the extent Defendants sought to compel non-binding mediation, and
stayed the case pending completion of the mediation, but it denied the Motion [8] in
part as premature to the extent Defendants asked the Court to compel binding
arbitration. See Order [15] at 6-7.
After the mediation was unsuccessful, CMH filed a Motion [17] to Compel
Arbitration and for Stay, see Mot. [17],1 which Plaintiff opposed, see Resp. [28].

On

November 10, 2020, the Court granted CMH’s Motion [17], ordered Plaintiff to
submit her claims against CMH to arbitration, and ordered that the case remain
stayed and administratively closed pending the outcome of arbitration. See Order
[24] at 12.
CMH and Precision have now filed Motions [25], [27] to Dismiss for Plaintiff’s

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Precision did not join in, nor did it file, its own motion to compel arbitration.

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failure to prosecute. There appears to be no dispute that, to date, Plaintiff has not
filed any demand for arbitration, or otherwise commenced the arbitration against
CMH.

See e.g., Mem. [26] at 3 (“The Plaintiff has taken no action toward filing a

demand before the American Arbitration Association as ordered by this Court.”);
Resp. [28] at 4, 7, 10 (claiming that a motion to compel arbitration by a defendant in
a pending “factually interdependent” state court case “has contributed to the delay
of seeking arbitration in this cause,” and that Plaintiff is awaiting the state court’s
decision because she “and CMH both have a significant interest in determining
whether [the state-court defendant] will be involved in the arbitration
proceedings”).

Since briefing was completed on February 17, 2022, no party has

informed the Court of any change in these circumstances.
II.
A.

DISCUSSION

Relevant legal authority
Federal Rule of Civil Procedure 41(b) provides 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. Unless the dismissal order states otherwise, a dismissal under this
subdivision (b) and any dismissal not under this rule--except one for lack
of jurisdiction, improper venue, or failure to join a party under Rule 19
--operates as an adjudication on the merits.

Fed. R. Civ. P. 41(b).

According to the United States Court of Appeals for the Fifth

Circuit, “[d]ismissal with prejudice is appropriate only when there is a showing of
(a) a clear record of delay or contumacious conduct by the plaintiff, and (b) where
lesser sanctions would not serve the best interests of justice.” Griggs v. S.G.E.
Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (quotation omitted).
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A clear

record of delay or contumacious conduct is found in most cases if one of three
aggravating factors also exist: “(1) delay caused by the plaintiff; (2) actual prejudice
to the defendant; or (3) delay as a result of intentional conduct.” Id. (quotation
omitted).
B.

Analysis
Plaintiff was ordered to submit her claims against CMH to arbitration almost

two years ago, on November 10, 2020. See Order [24] at 12. Over 20 months
later, even after both Defendants filed the present Motions to Dismiss for her
failure to prosecute, Plaintiff still has not complied with the Court’s Order [24] and
has not filed an arbitration demand against CMH. Nor has she otherwise sought
to lift the stay in this case and litigate her claims against Precision, which have
remained in abeyance over the inordinate amount of time this case has been stayed.
Both Defendants now seek dismissal based upon Plaintiff’s lengthy record of
inaction. See Mot. [25]; Mot. [27].
The Court acknowledges that the Order [24] compelling arbitration did not
contain a specific date by which Plaintiff had to demand arbitration, but even if
Plaintiff did not violate the letter of the Order [24], she has certainly violated its
spirit. See Order [24].

While Plaintiff references a separate entity’s motion to

compel arbitration in a state court action based upon the BDRA with CMH, she has
identified no requirement that her claims in state court against that entity be
arbitrated with her ones in this Court against CMH, nor has she offered any reason
why her claims against CMH cannot move forward. See Resp. [28].

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Nor do the

parties appear to have any way of knowing if or when the state court’s ruling on the
motion to compel arbitration may be forthcoming. See Resp. [28] at 4 (stating that
Plaintiff and the state court defendant “awaiting a ruling from the County Court
Judge in the parallel proceedings since May 4, 2021”); Reply [30] at 2 (“It appears
that the county court is not going to rule, at least until the Court enters judgment
on the parties’ claims and defenses in this case.”).
Despite the parties’ inability to anticipate when the state court will rule,
Plaintiff has not made any attempt to arbitrate her claims against CMH in this
case, even in the face of the current Motions [25], [27] to Dismiss.

Plaintiff’s

lengthy delay has left this case at a standstill for more than 20 months, in a case
where it is her burden to prosecute. See, e.g., Blanks v. Byd, No. 5:12-CV-112DCB-RHW, 2012 WL 4770725, at *2 (S.D. Miss. Oct. 5, 2012) (“It is the Plaintiff's
responsibility to prosecute this case.”); Miles v. Wal-Mart Stores, No. CIV.A.
SA05CA1068FB, 2006 WL 1149169, at *2 (W.D. Tex. Apr. 26, 2006) (“[I]t is
plaintiff’s burden to prosecute her claims against [a defendant].”) (citing Fed. R.
Civ. P. 41(b)).
This case has been pending for more than four years, see Compl. [1-1], and
Plaintiff’s intentional inaction has infringed upon Defendants’ right to a speedy
resolution of the claims against them that are and have been ripe for resolution.
Plaintiff’s delay also arguably undercuts one of the purposes served by the
applicable statutes of limitation, particularly the “elimination of stale claims.”
Delek Ref., Ltd. v. Occupational Safety & Health Rev. Comm’n, 845 F.3d 170, 177

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(5th Cir. 2016) (quotation omitted); see also, e.g., 51 Am. Jur. 2d Limitation of
Actions § 4 (stating that “statutes of limitation emphasize the plaintiffs’ duty to
diligently prosecute known claims”).

The record clearly reveals that Plaintiff has

not exercised any diligence in prosecuting her claims against either CMH or
Precision.
Based upon Plaintiff’s failure for over 20 months to comply with the Court’s
Order [24] to submit her claims against CMH to arbitration, the Court finds that
her claims in this civil action should be dismissed for failure to prosecute. See Fed.
R. Civ. P. 41(b). While the Court finds that Defendants have suffered actual
prejudice and that the delay has been a result of Plaintiff’s conduct, the Court is of
the view that a lesser sanction of dismissal without prejudice would best serve the
interests of justice here. See Griggs, 905 F.3d at 844. Moreover, this ruling is not
intended to, and does not, speak to or resolve the viability of her claims related to
any future demand for arbitration that Plaintiff may make.2
III.

CONCLUSION

To the extent the Court has not addressed any of the parties’ arguments, it
has considered them and determined that they would not alter the result.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Defendant

While Defendants invite the Court to consider the applicable statutes of limitations as to
Vegas’ counterclaim in state court in arguing that her reasons for delay in light of that
action are “disingenuous,” Reply [30] at 2, the Court does not reach any statute of
limitations argument whether related to this or the state court action. The Court notes
that the BDRA states that “[a]ll statutes of limitation that would otherwise apply to Claims
in a judicial action shall apply to the Arbitration of Claims under this Agreement. The
Arbitrator shall apply all applicable substantive law and shall . . . consider defenses that a
court could consider.” See BDRA [17-4] at 2.

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CMH Homes, Inc.’s Motion [25] to Dismiss and Defendant Precision Movers, Inc.’s
Motion [27] to Dismiss are GRANTED IN PART, to the extent Defendants seek
dismissal of this civil action for failure to prosecute, and DENIED IN PART, to the
extent Defendants ask the Court to dismiss Plaintiff’s claims with prejudice. This
ruling is not intended to and does not speak to or resolve the viability of Plaintiff’s
claims related to any demand for arbitration that Plaintiff may make against either
Defendant in this case.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff Pamela A.
Vegas’ claims in this case against Defendant CMH Homes, Inc., and Defendant
Precision Movers, Inc., are DISMISSED WITHOUT PREJUDICE for failure to
prosecute. The Court will enter a separate Final Judgment pursuant to Federal
Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 29th day of July, 2022.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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