Mauricio et al v. US Postal Service
Filing
30
Memorandum Opinion and Order granting 28 MOTION to Dismiss Under Rule 41(b) filed by US Postal Service. (Ordered by Judge Ada Brown on 10/24/2024) (ykp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ELIZABETH P MAURICIO et al.,
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Plaintiffs,
v.
US POSTAL SERVICE,
Defendant.
Civil Action No. 3:23-CV-00045-E
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant US Postal Service (USPS)’s Motion to Dismiss, which seeks
to dismiss Plaintiffs Elizabeth Mauricio and Yennys Ivette Paloeque (Palomeque)’s 1 claims. (ECF
No. 28). Plaintiffs have failed to respond to USPS’s Motion to Dismiss at any time. See N.D. Tex.
Loc. Civ. R. 7.1(e). Upon review of the Motion to Dismiss and docket, the Court concludes the
Motion to Dismiss should be GRANTED.
I.
BACKGROUND
On January 6, 2023, Plaintiffs filed their Complaint, which avers the following:
[] On March 11, 2the 021 [sic], Plaintiffs sustained personal injuries when their
motor vehicle was stuck by a motor vehicle # 8425854 owned by U. S. Postal
Service.
[] Vehicle # 842584 was operated by an employee of the U.S. Postal Service who
was in the discharge of their duties for the U.S. Postal Service.
[] Plaintiffs were traveling southbound on Inwood Road, in Dallas, Dallas County,
Texas.
[] The driver of Defendant’s vehicle was traveling south on Inwood Road in the
same lane and direction of travel as Plaintiffs’ vehicle.
The Court acknowledges that Plaintiff “Paloeque” appears to have her name misspelled—with the correct spelling
appearing to be “Yennys Ivette Palomeque.”
1
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[] The Defendant’s vehicle collided with the rear of Plaintiff’s vehicles, as a result
of the Defendant’s driver’s negligence which is more particularly described below.
[] As a result of the collision, Plaintiffs sustained injuries, and her vehicle was also
damaged.
(ECF No. 1 at 1-2). Plaintiffs asserted negligence claims against USPS. (ECF No. 1 at 3-4).
On August 25, 2023, USPS answered. On September 21, 2023, the Court entered a
scheduling order, which provided a deadline for completion of discovery for September 3, 2024.
(ECF No. 9 at 1; 3). 2 On February 15, 2024, USPS moved to compel discovery from Plaintiffs.
(ECF No. 18). Plaintiffs filed no response. On June 24, 2024, the Court granted the motion to
compel discovery. (ECF No. 24). On July 18, 2024, USPS filed a motion for show cause hearing
as to “why Plaintiffs case should not be dismissed under Rule 41(b) for failure to comply with the
Court’s order (Doc. 24), failure to prosecute, and failure to comply with the Federal Rules.” (ECF
No. 25 at 2). This motion for show cause hearing includes the following recitation:
The following facts demonstrate Plaintiffs’ failure to prosecute their claims:
• On January 4, 24, and 25, 2024, Defendant objected to Defendant’s discovery
responses. Plaintiffs did not respond. (Doc. 18 at 11-12.)
• On February 15, 2024, Defendant moved to compel supplemental discovery
responses. (Doc. 18.) Plaintiffs did not respond.
• On May 3, 2024, Plaintiffs did not designate any experts on or before their expert
designation deadline. (Doc. 9)
• On June 24, 2034, the Court granted Defendant’s Motion to Compel and ordered
Plaintiff to produce supplemental discovery responses on or before July 1, 2024.
(Doc. 24.) Plaintiffs did not produce supplemental responses.
• On July 9, 2024, Defendant emailed Plaintiffs, requesting that Plaintiffs respond
to the Court’s order and produce the requested information on or before July 12,
2022. (Exhibit 01.) The email was delivered and read by at least four individuals at
2
On August 22, 2024, the Court stayed this discovery deadline.
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Plaintiffs’ law firm, including Mr. Stone, the attorney of record. (Exhibit 02 (a)(d).) Plaintiffs did not respond.
• On July 16, 2024, counsel for Defendant emailed counsel for Plaintiffs regarding
this motion. (Exhibit 3(a).) The email was read by two individuals, including Mr.
Stone, the attorney of record. (Exhibit 03 (b).) Plaintiffs did not respond.
(ECF No. 25 at 3). This motion attaches the corresponding exhibit documents. (ECF No. 25-2).
Plaintiffs filed no response to this motion for show cause hearing at any time.
On August 22, 2024, USPS moved to dismiss this case pursuant to Federal Rule of Civil
Procedure 41(b), which permits involuntary dismissal of claims for failing to “prosecute or to
comply with these rules or a court order.” Fed. R. Civ. P. 41(b). Plaintiffs have filed no response
at any time. USPS’s Motion to Dismiss is ripe for adjudication.
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss with prejudice
an action for want of prosecution by the plaintiff. Link v. Wabash, R.R., 370 U.S. 626, 629-32
(1961); see, e.g., Salinas v. Sun Oil Co., 819 F.2d 105, 106 (5th Cir. 1987) (discussing the same).
A court may, either sua sponte or upon motion by the defendant, dismiss an action with prejudice
for plaintiff’s failure to prosecute, comply with the rules of procedure or obey court orders. Such
a dismissal is appropriate where: (i) the failure to prosecute or comply with the rules or orders was
the result of purposeful delay or contumacious 3 conduct and (ii) the record reflects that the district
court employed lesser sanctions before dismissing the action or the district court
expressly determined that lesser sanctions would not prompt diligent prosecution. See Long v.
Simmons, 77 F.3d 878, 880 (5th Cir. 1996); see also Berry v. CIGNA, 975 F.2d 1188, 1191 (5th
Cir. 1992). Prior to dismissing an action under Rule 41(b), courts should also consider the
Merriam Webster defines “contumacious” as “stubbornly disobedient.” MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/contumacious (last accessed Oct. 23, 2024).
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following so-called “aggravating factors:” (1) whether the dilatory conduct is attributable to the
plaintiff himself, as opposed to his attorney; (2) whether the defendant will suffer actual prejudice;
and (3) whether the conduct was intentional. See Berry, 975 F.2d at 1191.
Apart from Rule 41(b), federal courts are vested with the inherent power “to manage their
own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link, 370 U.S.
at 630–31. This authority is necessarily incident to the judicial power granted under Article III of
the Constitution and includes the power of the court to control its docket by dismissing a case as a
sanction for a party’s failure to obey court orders or rules. See Woodson v. Surgitek, Inc., 57 F.3d
1406, 1417 (5th Cir. 1995).
III.
ANALYSIS
A. Whether Plaintiffs Have Engaged in Contumacious Conduct
USPS first asserts that Plaintiffs have demonstrated contumacious conduct by their delays
in discovery and failing to comply with the Court’s orders regarding the same. (ECF No. 28 at 1215). USPS argues Plaintiffs have not prosecuted the case since January 2024—not producing
discovery, responding to motions, or conferring with Defendant. (ECF No. 28 at 12-15). Plaintiffs
have offered no response.
The Fifth Circuit has explained:
A petitioner’s delay meriting a Rule 41(b) dismissal with prejudice “must be longer
than just a few months; instead, the delay must be characterized by significant
periods of total inactivity.” Id. at 791 (internal quotation marks and citation
omitted). A party’s negligence does not make conduct contumacious; rather, “it is
the stubborn resistance to authority which justifies a dismissal with prejudice.”
Millan, 546 F.3d at 327 (internal quotation marks and citation omitted).
Haynes v. Turner Bass & Associates, No. 20-40787, 2022 WL 2383855, at *1 (5th Cir. July 1,
2022); see, e.g., Breaux v. Aramark Unif. & Career Apparel LLC, No. 3:21-CV-1718-M-BN, 2022
WL 10177695, at *4 (N.D. Tex. Sept. 15, 2022), report and recommendation adopted, No. 3:21-
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CV-1718-M-BN, 2022 WL 10207522 (N.D. Tex. Oct. 17, 2022) (discussing the same). Upon
review of the docket and uncontested averments, Plaintiffs have engaged in contumacious conduct
with regard to discovery responses and orders. Furthermore, Plaintiffs’ failure to respond to
USPS’s motion to compel, (ECF No. 18); motion for order to show cause, (ECF No. 25); and
Motion to Dismiss, (ECF No. 28), suggest dilatory conduct attributable—at least—to Plaintiffs’
counsel. Upon review of Plaintiffs’ responses to discovery, (ECF No. 19-1 at 98-205), it is apparent
that Plaintiffs (i) responded to discovery after responses were due 4 and (ii) the majority of
discovery responses offer piecemeal, incomplete sentences; general averments of “[s]ee attached”
without referencing page, exhibit, or bates number; “[p]laintiff will supplement;” or generic
objections or averments that “we are in early stages of discovery.” (See, e.g., ECF No. 19-1 at 131,
132, 141, 142, 146). Such responses show dilatory, intentional conduct attributable to both
Plaintiff’s counsel and Plaintiffs. See Perez v. Meridian Sec. Ins. Co., No. 7:21-CV-00487, 2022
WL 20717391, at *2 (S.D. Tex. Nov. 10, 2022) (“clients are bound by the action (or inaction) of
their attorneys.”); 5 see generally Berry, 975 F.2d at 1191. Taken together with (i) USPS’s
uncontested averment that Plaintiffs have not provided discovery since January 2024 and (ii)
Regarding interrogatories, Federal Rule of Civil Procedure 33(b)(2) states that a “responding party must serve its
answers and any objections within 30 days after being served with the interrogatories.” Fed. R. Civ. P. 33(b)(2).
Regarding requests for production, Federal Rule of Civil Procedure 34(b)(2)(A) states that “[t]he party to whom the
request is directed must respond in writing within 30 days after being served.” Fed. R. Civ. P. 34(b)(2)(A). The record
shows USPS advised Plaintiffs of their untimely responses to such discovery. (ECF No. 19-1 at 210).
4
5
Perez includes the following footnote, collecting cases:
Link v. Wabash R. Co., 370 U.S. 626, 633-34 (1962) (quoting Smith v. Ayer, 101 U.S. 320, 326
(1879)) (“There is certainly no merit to the contention that dismissal of petitioner’s claim because
of his counsel’s unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily
chose this attorney as his representative in the action, and he cannot now avoid the consequences of
the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent
with our system of representative litigation, in which each party is deemed bound by the acts of his
lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the
attorney.’”).
Perez v. Meridian Sec. Ins. Co., No. 7:21-CV-00487, 2022 WL 20717391, at *2 n.31 (S.D. Tex. Nov. 10, 2022).
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Plaintiffs complete failure to respond to USPS’s various motions, the Court must conclude that
Plaintiffs have engaged in conduct that shows a “blatant disregard for the Court’s deadlines and
discovery management.” See Perez, 2022 WL 20717391, at *2 (discussing a defendant’s various
violations of discovery and consequently striking defendant’s answer).
For those reasons, the Court concludes Plaintiffs have failed to prosecute or comply with
the Court’s orders as a result of contumacious conduct. See Long, 77 F.3d at 880; see
also Berry, 975 F.2d at 1191. USPS has met the first requirement for dismissal under Federal Rule
of Civil Procedure 41(b).
B. Whether Lesser Sanctions Would Not Prompt Diligent Prosecution
USPS next argues that lesser sanctions would not be effective. (ECF No. 28 at 15-17). As
discussed hereabove, this case’s procedural history shows Plaintiffs have consistently failed to
follow the deadlines found in Federal Rules of Civil Procedure and the Court’s orders. Plaintiffs
have further failed to respond to any motion in this case. Plaintiffs have not sought leave of court
at any time. Consequently, the Court determines that lesser sanctions would not prompt diligent
prosecution of Plaintiffs’ claims. See Long, 77 F.3d at 880; see also Berry, 975 F.2d at 1191. USPS
has met the second requirement for dismissal under Federal Rule of Civil Procedure 41(b). Having
shown both requirements for dismissal, the Court GRANTS USPS’s Motion to Dismiss under
Federal Rule of Civil Procedure 41(b).
C. Whether Plaintiffs’ Failure to Respond to the Motion to Dismiss Merits an
Independent Basis for Dismissal
Northern District of Texas Local Rule 7.1(e) instructs that “[a] response and brief to an
opposed motion must be filed within 21 days from the date the motion is filed.” N.D. Tex. Loc.
Civ. R. 7.1(e). A party who fails to pursue a claim beyond its initial pleading may waive or abandon
the claim. Black v. N. Panola School Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (“[Plaintiff]
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further failed to defend her retaliatory abandonment claim in both responses to the
defendant’s motion to dismiss.”). Thus, a party’s failure to defend a claim in her response to
a motion to dismiss constitutes abandonment. See Matter of Dallas Roadster, Ltd., 846 F.3d 112,
126 (5th Cir. 2017) (concluding plaintiff’s failure to respond to defendant’s argument in
a motion to dismiss constituted abandonment) (citing Black, 461 F.3d at 588 n.1); see, e.g., Vela
v. City of Houston, 276 F.3d 659, 678-79 (5th Cir. 2001) (discussing abandonment of theories of
recovery and defenses when such theories were not presented to the trial court).
Here, Plaintiffs failed to respond to USPS’s Motion to Dismiss at any time; more than 21
days have passed since the date USPS’s motion to dismiss was filed. See N.D. Tex. Loc. Civ. R.
7.1(e). Plaintiffs have filed no motion for leave or any other filing relating to, objection to, or
responding to USPS’s Motion to Dismiss. Because Plaintiffs wholly failed to respond to the
challenge to their claims, Plaintiffs have abandoned those claims. See Black, 461 F.3d at 588 n.1;
Matter of Dallas Roadster, Ltd., 846 F.3d at 126; Vela, 276 F.3d at 678-79. 6 Consequently and as
an exercise of the Court’s inherent powers of docket control, the Court GRANTS USPS’s Motion
to Dismiss.
(This space left blank intentionally).
See also, e.g., JMCB, LLC v. Bd. of Com. & Indus., 336 F. Supp. 3d 620, 634 (M.D. La. 2018) (“[F]ailure to brief an
argument in the district court waives that argument in that court.”) (quoting Magee v. Life Ins. Co. of N. Am., 261 F.
Supp. 2d 738, 748 n.10 (S.D. Tex. 2003)) (citations omitted); Kellam v. Servs., No. 12-352, 2013 WL 12093753, at
*3 (N.D. Tex. May 31, 2013), aff’d sub nom. Kellam v. Metrocare Servs., 560 F. App’x 360 (5th Cir. 2014)
(“Generally, the failure to respond to arguments constitutes abandonment or waiver of the issue.”) (citations omitted);
Mayo v. Halliburton Co., No. 10-1951, 2010 WL 4366908, at *5 (S.D. Tex. Oct. 26, 2010) (granting motion to dismiss
breach of contract claim because plaintiff failed to respond to defendants’ motion to dismiss on this issue and thus
waived the argument).
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IV.
CONCLUSION
For the reasons enumerated above, Plaintiffs claims are DISMISSED without prejudice.
The Court shall follow with a final judgment. See Fed. R. Civ. P. 54; Fed. R. Civ. P. 58.
SO ORDERED.
24th day of October, 2024.
___________________________________
ADA BROWN
UNITED STATES DISTRICT JUDGE
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