Martinez v. Wells Fargo Bank, N.A.
ORDER DISMISSING CASE. Signed by Judge Xavier Rodriguez. (rf)
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
Rodolfo B Martinez, II,
Wells Fargo Bank, N.A.,
Civil Action No. SA-11-CV-491-XR
On this date, the Court considered the status of the above-captioned case. On July 18, 2011,
Defendant filed a motion to dismiss the complaint for failure to state a claim upon which relief can
be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. On September 12, 2011,
the Court issued a written order granting Defendant’s motion to dismiss the complaint without
prejudice to Plaintiff re-filing an amended complaint. (Docket No. 9). The Court ordered the
Plaintiff to file an amended complaint on or before October 10, 2011, specifying the causes of action
upon which he believes he is entitled to relief. The Court warned Plaintiff that failure to file an
amended complaint by that date could result in dismissal. Plaintiff did not file an amended
complaint as directed, and on October 13, 2011, the Court ordered Plaintiff to file an amended
complaint or otherwise apprise the Court of the status of this case in the form of a written advisory
no later than November 3, 2011. Plaintiff failed to update the Court on the status of the case. On
December 8, 2011, the Court issued a second Order to Show Cause and directed Plaintiff to notify
the Court of the status of this case on or before December 15, 2011. (Docket No. 13). The Court
again warned that if Plaintiff failed to file an amended complaint by that date, the Court might
dismiss the case. To this date, Plaintiff has not filed an amended complaint and has not apprised the
Court of the status of the case.
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.” F ED . R. C IV . P. 41(b). A district court sua sponte may dismiss an action for failure to
prosecute or to comply with any court order. Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998).
The Court’s authority to dismiss a case for failure to prosecute is based on the Court’s inherent
authority to manage and administer its own affairs to ensure the orderly and expeditious disposition
of cases. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962).
When a dismissal precludes further litigation of the case due to the expiration of the statute
of limitations, the dismissal operates as a dismissal with prejudice. McGowan v. Faulkner Concrete
Pipe Co., 659 F.2d 554, 554 (5th Cir. 1981). A dismissal with prejudice is an extreme sanction that
deprives the litigant of an opportunity to litigate his claim. Callip v. Harris County Child Welfare
Dep’t, 757 F.2d 1513, 1519 (5th Cir. 1985). Consequently, when limitations bars or arguably bars
refiling, dismissal is appropriate only when (1) there is a clear record of delay or contumacious
conduct by the plaintiff and (2) the court determines that lesser sanctions would not prompt diligent
prosecution, or lesser sanctions have been employed but proved to be futile. Id. 1519-21.
A clear record of delay is found when there have been significant periods of total inactivity.
Berry v. Cigna/RSI Cigna, 975 F.2d 1188, 1191 n.5 (5th Cir. 1992); see also Bullard v. Burlington
N. & Santa Fe. Ry. Co., 368 Fed. App’x 574, *7 (5th Cir. 2010) (“We have “recognized that ‘delay
which warrants dismissal with prejudice must be longer than just a few months; instead, the delay
must be characterized by significant periods of total inactivity.’”). Contumacious conduct is a
“stubborn resistance to authority.” McNeal v. Papasan, 842 F.2d 787, 792 (5th Cir. 1988).
Additionally, in most cases, at least one of three aggravating factors must be present. Those
factors are: (1) delay caused by the plaintiff personally; (2) actual prejudice to the defendant; or (3)
delay caused by intentional conduct. Id. at 1190. The presence of one aggravating factor, along with
a record of delay or contumacious conduct and consideration of lesser sanctions, will support a
dismissal with prejudice. Price v. McGlathery, 792 F.2d 472 (5th Cir. 1985).
The Court has issued a total of three warnings that this case may be dismissed if Plaintiff fails
to file an amended complaint or otherwise advise the Court of the status. The Court further warned
Plaintiff in its December 8, 2011 order that failure to comply would be considered contumacious
conduct justifying dismissal for failure to prosecute under F ED . R. C IV . P. 41. Thus, this Court
concludes that Plaintiff’s refusal to respond to its prior orders constitutes contumacious conduct.
Additionally, Plaintiff’s repeated refusal to respond to these orders demonstrates that lesser sanctions
would be futile. Finally, an aggravating factor is present because the delay appears intentional and
Defendant is prejudiced by being unable to move forward with the litigation. The Court therefore
deems this case appropriate for dismissal under F ED . R. C IV . P. 41. It is ORDERED that Plaintiff’s
complaint be DISMISSED for failure to prosecute under F ED . R. C IV . P. 41.
SIGNED this 2nd day of February, 2012.
UNITED STATES DISTRICT JUDGE
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