Sims v. Sam's West, Inc.
ORDER granting in part and denying in part Defendant's 20 Motion to Dismiss for Lack of Prosecution. Plaintiff's claims are dismissed without prejudice. A separate judgment shall be entered. Signed by District Judge Keith Starrett on October 7, 2014 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EDNA MARIE SIMS
CIVIL ACTION NO. 2:13cv251-KS-MTP
SAM’S EAST, INC.
OPINION AND ORDER
This matter is before the Court sua sponte and upon the Defendant Sam’s East,
Inc.’s Motion to Dismiss for Failure to Prosecute . For the reasons stated below, the
Court finds that the motion should be granted in part and denied in part, and that the
Plaintiff’s claims should be dismissed without prejudice.
On August 6, 2014, the Court granted the motion of Plaintiff’s counsel to
withdraw as counsel of record. The Order  directed the Plaintiff Edna Marie Sims to
obtain substitute counsel or advise the Court in writing by September 5, 2014, that she
intended to proceed without an attorney. The Court also advised Plaintiff that her failure
to respond to the Order by September 5, 2014, or to otherwise prosecute this case
could result in the dismissal of the action. Plaintiff failed to comply with the Order.
On September 9, 2014, Defendant filed its Motion to Dismiss for Failure to
Prosecute . Defendant argues that the Plaintiff’s claims should be dismissed with
prejudice pursuant to Federal Rule of Civil Procedure 41(b).
On September 11, 2014, the Court entered its Order to Show Cause . This
Order  directed the Plaintiff to file a written statement with the Clerk of Court on or
before September 26, 2014, setting forth why the case should not be dismissed for
failure to comply with the Court’s prior order. Plaintiff was further directed to obtain
substitute counsel or advise the Court in writing on or before September 26, 2014, that
she intended to proceed pro se. The Court also ordered the Plaintiff to file a written
response to the Motion to Dismiss for Failure to Prosecute  on or before September
26, 2014. Finally, Plaintiff was advised that her failure to comply with any of the Court’s
directives could result in the action being dismissed without further notice. The Plaintiff
failed to comply with this Order .
The record in this case is clear that Plaintiff has failed to comply with two Court
Orders, including an Order to Show Cause. In addition, Plaintiff has failed to respond to
Defendant’s Motion to Dismiss for Failure to Prosecute , or otherwise prosecute this
case since the Court permitted her legal counsel to withdraw. This Court has the
authority to dismiss an action for failure to prosecute and failure to comply with court
orders under Rule 41(b) of the Federal Rules of Civil Procedure and under its inherent
authority to dismiss the action sua sponte. See, e.g., Link v. Wabash R.R. Co., 370
U.S. 626, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962); Larson v. Scott, 157 F.3d 1030 (5th
Cir. 1998); McCullough v. Lynaugh, 835 F.2d 1126 (5th Cir.1988). The Court must be
able to clear its calendar of cases that remain dormant due to the inaction or
dilatoriness of the parties seeking relief, so as to achieve the orderly and expeditious
determination of actions. Link, 370 U.S. at 630-31. Such a “sanction is necessary in
order to prevent undue delays in the disposition of pending cases and to avoid
congestion in the calendars of the District Courts.” Id. at 629-30. Based on the record
in this action, the Court concludes that dismissal under Federal Rule of Civil Procedure
41(b) for Plaintiff's failure to prosecute and failure to comply with the orders of the Court
is proper. See Quaak v. Texas, 515 Fed. Appx. 315, 316 (5th Cir. 2013) (affirming
dismissal based on a pro se litigant’s failure to prosecute and comply with a court
order); Larson, 157 F.3d at 1032 (same).
The Court also determines that the dismissal of the Plaintiff’s claims should be
without prejudice. The Fifth Circuit has recognized “that dismissal with prejudice ‘is an
extreme sanction that deprives a litigant of the opportunity to pursue his claim.’” Brown
v. Oil States Skagit Smatco, 664 F.3d 71, 77 (5th Cir. 2011) (quoting Woodson v.
Surgitek, Inc., 57 F.3d 1406, 1418 (5th Cir. 1995)). “[D]ismissal with prejudice is
warranted only where a clear record of delay or contumacious conduct by the plaintiff
exists and a lesser sanction would not better serve the interests of justice.” Millan v.
USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008) (citation and internal
quotation marks omitted). Dismissal without prejudice is a lesser sanction in the Fifth
Circuit. See Bryson v. United States, 553 F.3d 402, 403 (5th Cir. 2008) (citing
McCullough, 835 F.2d at 1127). Assuming arguendo the existence of contumacious
conduct on the part of the Plaintiff or a clear record of delay, the Court is unconvinced
that the lesser sanction of dismissal without prejudice would prove futile or have no
deterrent effect. Furthermore, the Court has not considered the merits of the Plaintiff’s
claims and it appears the litigation had stalled at written discovery when Plaintiff’s
counsel was permitted to withdraw. Cf. West v. Ford Motor Co., No. 2:13cv173, 2014
WL 1569565, at *2 (S.D. Miss. Apr. 17, 2014) (finding dismissal without prejudice to be
appropriate where there were no substantive proceedings on the plaintiff’s claims and
the merits of the action went unaddressed).
IT IS THEREFORE ORDERED AND ADJUDGED that Defendant Sam’s East,
Inc.’s Motion to Dismiss for Failure to Prosecute  is granted in part and denied in
part. Plaintiff’s claims are dismissed without prejudice. A separate final judgment will
issue in accordance with Federal Rule of Civil Procedure 58.
IT IS FURTHER ORDERED AND ADJUDGED that the Clerk of Court is directed
to mail the Plaintiff a copy of this order and the accompanying judgment at her address
listed on the docket.
SO ORDERED AND ADJUDGED this the 7th day of October, 2014.
UNITED STATES DISTRICT JUDGE
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