Bolden v. United States Postal Service

Filing 19

ORDER OF DISMISSAL. Case terminated on April 13, 2017. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)

United States District Court
Southern District of Texas

ENTERED
April 13, 2017

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
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§
Plaintiff,
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VS.
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UNITED STATES POSTAL SERVICE, et al., §
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Defendants.
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David J. Bradley, Clerk

MARIE BOLDEN,

CIVIL ACTION NO. 4:16-CV-00837

ORDER OF DISMISSAL
I.

INTRODUCTION
This matter is before the Court on the defendant’s, United States of America (the “United

States” or the “defendant”), motion to dismiss (Dkt. No. 15). The plaintiff, Marie Bolden (the
“plaintiff”), has failed to file a response and the time for doing so has long expired. Thus,
pursuant to this Court’s local rules, the plaintiff’s “[f]ailure to respond will be taken as a
representation of no opposition.” S.D. Tex L.R. 7.4. After having carefully considered the
motion, the pleadings, and the applicable law, the Court determines that the defendant’s motion
to dismiss should be GRANTED.
II.

BACKGROUND
On March 25, 2016, the plaintiff, proceeding pro se and in forma pauperis, filed the

instant action against the United States Postal Service arising out of an automobile accident that
occurred on October 26, 2013, between an automobile, in which the plaintiff was traveling as a
passenger, and a United States Postal Service truck. On June 17, 2016, the United States filed a
stipulation to dismiss the United States Postal Service as a defendant and requesting that it be
substituted as the proper defendant in its place. (Dkt. No. 5). Thereafter, the defendant filed a

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Third-Party Complaint against Jamma N. Harris, the driver of the automobile transporting the
plaintiff, alleging that Harris’s negligence was the sole cause of the plaintiff’s injuries and
damages. (Dkt. No. 7). On June 20, 2016, the Court entered an Order granting the defendant’s
stipulation and dismissing the United States Postal Service as a party. (Dkt. No. 8). The
defendant now moves to dismiss the plaintiff’s complaint pursuant to Rules 37(b)(2)(A)(v) and
41(b) of the Federal Rules of Civil Procedure due to the plaintiff’s failure to comply with this
Court’s Order dated November 3, 2016, granting the defendant’s motion to compel. (Dkt. No.
14).
At this case’s inception, on March 30, 2016, the Court issued an Order for Conference
and Disclosure of Interested Parties advising that, inter alia: (1) the parties’ attendance is
required at the initial pretrial and scheduling conference to be held telephonically on June 27,
2016 at 9:00 a.m.; (2) all defendants must be served within 90 days of filing the complaint as
mandated by Fed. R. Civ. P. 4(m); (3) the parties are obligated to confer in accordance with Fed.
R. Civ. P. 26(f) and file a joint discovery/case management plan no less than 10 days prior to the
pretrial scheduling conference; and (4) pro se litigants are “bound by the requirements imposed
upon counsel” and that a “[f]ailure to comply with the order may result in sanctions, including
dismissal of the action and assessment of fees and costs.” (Dkt. No. 3).
On June 30, 2016, following the telephonic scheduling conference held in this case on
June 27, 2016, and in compliance with this Court’s Order, the defendant served its initial
disclosures on the plaintiff. On July 29, 2016, the defendant served its first set of interrogatories,
requests for production and requests for admission on the plaintiff. On September 15, 2016,
however, after having failed to receive any communication from the plaintiff and/or any answers

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or responses to any of its discovery requests, the defendant sent the plaintiff a letter stating the
following:
On July 27, 2016, I served Defendant’s first set of interrogatories, requests for
production and requests for admission on you via regular mail.
The
answers/responses were due almost a month ago on August 29, 2016, and the time
for objections has long since passed, so please serve your answers/responses,
without objections, as soon as possible so that I can notice your deposition shortly
thereafter and get this case moving given the impending deadlines. If you no
longer wish to pursue this case, please let me know so that I can draft the
appropriate dismissal documents. My direct line is [phone].
If I do not receive your answers/responses, or in the alternative, your
communication that you no longer wish to pursue this case, I intend on filing a
motion to compel your answers/responses forthwith.
(See Dkt. No. 12, Ex. 3).
On September 28, 2016, the plaintiff left the defendant a voice message at the number
listed above indicating that she still wished to pursue her action against the defendant, but giving
no indication as to when she intended to serve responses to any of the defendant’s outstanding
discovery requests. Approximately an hour thereafter, the defendant telephoned the plaintiff and
left her a voice message asking her to call to advise when it could expect to receive her
outstanding discovery answers and/or responses. The plaintiff, however, never returned the
defendant’s phone call.
On October 4, 2016, the defendant filed a motion to compel. (Dkt. No. 12). On
November 3, 2016, this Court entered an Order compelling the plaintiff to provide her initial
disclosures, answers to the defendant’s first set of interrogatories and requests for production by
November 13, 2016. (Dkt. No. 14). To date, the plaintiff has failed to comply with this Court’s
Order or otherwise offer any explanation for her inability to do so.

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The dispositive motion deadline in this case expired on February 28, 2017 and this case is
currently set for docket call on June 5, 2017.
III.

ANALYSIS AND DISCUSSION
A district court may impose sanctions on a party for failure to obey an order to provide or

permit discovery. See Fed. R. Civ. P. 37(b)(2)(A). Appropriate sanctions may include an order
dismissing an action in whole or in part. Fed. R. Civ. P. 37(b)(2)(A)(v). Although a district
court “has broad discretion under Rule 37(b) to fashion remedies suited to [a party’s]
misconduct,” such discretion is not without limits. Pressey v. Patterson, 898 F.2d 1018, 1021
(5th Cir. 1990). The Fifth Circuit has expressly reasoned, “[w]hen lesser sanctions have proved
futile, a district court may properly dismiss a suit with prejudice.” Hornbuckle v. Arco Oil &
Gas Co., 732 F.2d 1233, 1237 (5th Cir. 1984). Nevertheless, “[s]everal factors must be present
before a district court may dismiss a case with prejudice as a sanction for violating a discovery
order.” Doe v. Am. Airlines, No. 07-10125, 2008 WL 2570789, *2 (5th Cir. June 26, 2008) (per
curiam). Such factors include the following:
(1) the refusal to comply results from willfulness or bad faith and is accompanied
by a clear record of delay or contumacious conduct; (2) the violation of the
discovery order must be attributable to the client instead of the attorney, (3) the
violating party’s misconduct must substantially prejudice the opposing party; and
(4) a less drastic sanction would not substantially achieve the desired deterrent
effect.
Id. (citing FDIC v. Conner, 20 F.3d 1376, 1380 - 81 (5th Cir. 1994) (quoting Coane v. Ferrara
Pan Candy Co., 898 F.2d 1030, 1032 (5th Cir. 1990) (other citations and quotation marks
omitted)).
A district court may also dismiss a plaintiff’s claims sua sponte for failure “to prosecute
or to comply with any order of court.” McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.
1988) (citing Fed. R. Civ. P. 41(b)). “This authority flows from the court’s inherent power to

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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, 82 S. Ct. 1386, 8 L. Ed.2d 734 (1962)); see also Lopez v. Aransas Cty. Indep. Sch. Dist.,
570 F.2d 541, 544 (5th Cir. 1978) (“Although the rule is phrased in terms of dismissal on the
motion of the defendant, it is clear that the power is inherent in the court and may be exercised
sua sponte whenever necessary to achieve the orderly and expeditious disposition of cases.”)
(internal citation and quotations marks omitted). Specifically, Federal Rule of Civil Procedure
41(b) authorizes the involuntary dismissal of a plaintiff’s claims where he has failed to prosecute
those claims, comply with the Federal Rules of Civil Procedure or local rules, or follow a court
order or directive. See Fed. R. Civ. P. 41(b). Such a dismissal may be with or without prejudice.
See Long v. Simmons, 77 F.3d 878, 879 - 80 (5th Cir. 1996).
Although pro se litigants, such as the plaintiff, are afforded some degree of leniency in
certain areas, they are, nevertheless, still required to reasonably comply with court orders, rules
and deadlines. See Beard v. Experian Info. Sols. Inc., No. 06-10333, 2007 WL 178109, *2 (5th
Cir. Jan. 19, 2007) (citing Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)). Indeed, in spite of
this lawsuit’s pendency for more than a year, the plaintiff has shown little to no interest in
pursuing her claims against the defendant and this case has barely advanced beyond its infancy
stages.
It is undisputed that the plaintiff has failed to participate in any discovery in this case
and/or failed to comply with any rules governing such, despite being fully advised of her
obligations to do so. To wit, the plaintiff has failed to: (1) serve her initial disclosures; (2)
provide answers to interrogatories and requests for admission; (3) provide responses to requests
for production; (4) file a response to the defendant’s motion to compel; (5) comply with this

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Court’s Order dated November 3, 2016, compelling her discovery answers and/or responses; and
(6) respond to the defendant’s motion to dismiss her lawsuit despite its four-month pendency.
Moreover, not only has the plaintiff failed to provide an explanation for her failure to
comply with any of the aforementioned rules or obligations, but she has also failed to offer even
a modicum of good cause to justify her inability to do so. This clear record of contumacious
conduct is attributable entirely to the plaintiff and is not attributable to an attorney, since she is
proceeding pro se in this action. Her conduct also substantially prejudices the defendant because
it has prevented the defendant’s timely and adequate preparation for trial. The defendant has
suffered substantial prejudice due to the passage of time, the plaintiff’s failure to participate in
this lawsuit, the plaintiff’s repeated failure to respond to any discovery requests propounded to
her and the defendant’s inability to prepare any meaningful defense in this case in the absence of
the plaintiff’s active participation.
Given the plaintiff’s persistent failure to actively participate in this lawsuit, coupled with
the fact that this lawsuit has already been pending for at least a year, the Court is of the opinion
that continuing this lawsuit would be a waste of resources and constitute needless delay.
Accordingly, unable to move forward with this lawsuit, the Court deems a dismissal of this case,
without prejudice, warranted because the plaintiff has failed to comply with even the most
rudimentary obligation of serving her initial disclosures and has repeatedly shown a lack of
diligence in prosecuting her case. To impose a less drastic sanction in this instance would not
encourage the plaintiff to begin diligently prosecuting her lawsuit.

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IV.

CONCLUSION
Based on the foregoing analysis and discussion, the defendant’s motion to dismiss is

GRANTED. The plaintiff’s case is hereby DISMISSED without prejudice. All other relief not
expressly granted is hereby DENIED.
It is so ORDERED.
SIGNED on this 13th day of April, 2017.
___________________________________
Kenneth M. Hoyt
United States District Judge

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