Munoz et al v. US Bank NA

Filing 19

MEMORANDUM OPINION AND ORDER: The Court dismisses this action with prejudice. (Ordered by Judge Sam A Lindsay on 2/29/2012) (skt)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MAGDALENO MUNOZ and
IGNACIA SILVERIO,
Plaintiffs,
v.
U.S. BANK, N.A.,
Defendant.

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Civil Action No. 3:11-CV-941-L

MEMORANDUM OPINION AND ORDER
In the Scheduling Order entered on November 30, 2011, the court “directed” the parties “to
confer and file with the court by February 28, 2012, a joint report setting forth the status of
settlement negotiations and the specific efforts made by the parties to resolve this case. If no efforts
have been made, the parties must state the reasons why no settlement efforts have occurred.” Doc.
16, ¶ 10. According to the Settlement Status Report filed by Defendant U.S. Bank, N.A. (“U.S.
Bank”) on February 28, 2012, Plaintiffs’ counsel failed to confer and did not respond to U.S. Bank’s
request to confer as required by the court’s Scheduling Order. The court has no reason to disbelieve
what is in Defendant’s Settlement Status Report, as Plaintiffs did not join in the Settlement Status
Report. It was filed by one party.
The Scheduling Order warned counsel and the parties that sanctions could be imposed for
noncompliance. Paragraph 14 of the Scheduling Order provides:
14. Sanctions: If counsel or any party fails or refuses to do anything
required by this order, a mediation order, or any other order entered
by the court, such party or counsel, or both, may be subject to
sanctions without further notice. These sanctions may include
striking a party’s witnesses or exhibits, striking a party’s claims or
Memorandum Opinion and Order - Page 1

defenses, dismissal of a party’s claims, entry of default, payment of
expenses by the offending party or attorney, or other sanctions the
court deems appropriate. See Fed. R. Civ. P. 16(f).
The court now must determine the appropriate sanction to impose against Plaintiffs for failure to
comply with the court’s Scheduling Order.
The court believes that dismissal of this action pursuant to Rule 41(b) of the Federal Rules
of Civil Procedure is appropriate because Plaintiffs have failed to comply with several court orders.
Rule 41(b) allows a court to dismiss an action sua sponte for failure to prosecute or failure to follow
orders of the court. This authority flows from the court’s inherent power to control its docket and
prevent undue delays in the disposition of pending cases. Boudwin v. Graystone Ins. Co., 756 F.2d
399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1962)). The court’s
decision to dismiss an action, however, is materially affected by whether the dismissal is to be with
or without prejudice. “A dismissal with prejudice is appropriate only if the failure to comply with
the court order was the result of purposeful delay or contumaciousness and the record reflects that
the district court employed lesser sanctions before dismissing the action.” Long v. Simmons, 77 F.3d
878, 880 (5th Cir. 1996) (citation in footnote omitted).
The Fifth Circuit has set forth a number of lesser sanctions that a court is to consider before
it dismisses with prejudice: “Assessments of fines, costs, or damages against the plaintiff or his
counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and
explicit warnings are preliminary means or less severe sanctions that may be used to safeguard a
court’s undoubted right to control its docket.” Boudwin, 756 F.2d at 401 (quoting Rogers v. Kroger,
669 F.2d 317, 321-22 (5th Cir. 1982)). The court must decide whether dismissal with or without
prejudice is appropriate. As a starting point, the court retraces pertinent events of this case.

Memorandum Opinion and Order - Page 2

On June 29, 2011, the court dismissed this action without prejudice because Plaintiffs failed
to comply with the court’s orders of May 17, 2011, and June 17, 2011. On July 6, 2011, Plaintiffs
filed a motion for relief from the court’s order of June 29, 2011. The court granted the motion,
vacated its order of June 29, 2011, and directed the clerk of the court to reopen this action.
On November 30, 2011, the court issued its Scheduling Order. The court directed the clerk
to reinstate U.S. Bank’s Motion to Dismiss or, Alternatively, Motion for More Definite Statement,
which was originally filed May 16, 2011. The court also ordered Plaintiffs to file a response to the
motion by December 14, 2011. Plaintiffs filed no response to the motion.
During the course of this litigation there have been four instances in which Plaintiffs have
failed to comply with a valid court order — the order of May 17, 2011, and June 17, 2011; and two
instances (December 14, 2011, and February 28, 2012) with respect to the Scheduling Order.
The court has been patient with Plaintiffs by allowing them to have their case reinstated and
by allowing them additional time to respond to U.S. Bank’s motion to dismiss. The court allowed
this additional time so that it could have Plaintiffs’ position on the motion. Despite this gesture by
the court, Plaintiffs have violated the court’s Scheduling Order twice since the case was reinstated.
These actions indicate that they do not take seriously the prosecution of this case or adherence to
the court’s orders.
The court has issued lesser sanctions by providing explicit warnings that regarding
noncompliance in its orders and by dismissing this action without prejudice. Given the explicit
warnings issued by the court and the dismissal of this action without prejudice, and Plaintiffs’
indifference or refusal to comply with the court’s orders, the court determines that Plaintiffs are
deliberately indifferent with respect to their compliance with the court’s orders and the delay that

Memorandum Opinion and Order - Page 3

has occurred by their noncompliance. The history of Plaintiffs’ failure to comply and the delay
caused by the noncompliance justify dismissal with prejudice.
For the reasons herein stated, the court dismisses this action with prejudice.
It is so ordered this 29th day of February, 2012.

_________________________________
Sam A. Lindsay
United States District Judge

Memorandum Opinion and Order - Page 4