Arensberg v. Associations, Inc.

Filing 13

ORDER GRANTING 12 Motion to Dismiss for want of prosecution; DENYING AS MOOT 12 Motion to Compel. Plaintiff's claim is DISMISSED WITHOUT PREJUDICE. Signed by Judge David A. Ezra. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JEANNETTE ARENSBERG,
Plaintiff,
vs.
ASSOCIATIONS, INC. d/b/a
ASSOCIA PROCOMM,
Defendant.

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No. SA:14–CV–765–DAE

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FOR FAILURE
TO PROSECUTE
Before the Court is a Motion to Dismiss for Failure to Prosecute and
an alternative Motion to Compel Plaintiff to Participate in Discovery filed by
Defendant Associations, Inc. d/b/a Associa ProComm (“Defendant”). (Dkt. # 12.)
Pursuant to Local Rule CV-7(h), the Court finds this matter suitable for disposition
without a hearing. After reviewing the Motion, for the reasons that follow, the
Court GRANTS Defendant’s Motion to Dismiss and DENIES AS MOOT
Defendant’s Motion to Compel Plaintiff to Participate in Discovery. (Dkt. # 12.)
BACKGROUND
On August 28, 2014, Plaintiff Jeannette Arensberg (“Plaintiff”) filed a
pro se Complaint against Defendant, her former employer, alleging violations of
the Americans with Disabilities Act. (Dkt. # 1.) Specifically, Plaintiff alleges that
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Defendant failed to provide reasonable accommodations for her chronic migraines,
that she was eventually discharged from her position because “it just [wasn’t]
working out,” and that in reality she was discharged because of her disability. (Id.
¶¶ 7–10.) On March 6, 2015, Magistrate Judge Pamela Mathy issued an order
extending Plaintiff’s deadline to effectuate service. (Dkt. # 4.) Defendant filed a
Motion to Dismiss for Insufficient Service of Process on March 27, 2015; Ms.
Arensberg never filed a response. (Dkt. # 5.) On May 19, 2015, this Court denied
Defendant’s motion in light of Judge Mathy’s order. (Dkt. # 10.)
On May 5, 2015, this Court issued a scheduling order requiring the
parties to complete discovery by December 9, 2015. (Dkt. # 6 at 2.) On
September 9, 2015, Defendant sent Ms. Arensberg a First Set of Interrogatories, a
First Set of Requests for Production of Documents, and a Request for Disclosure
via e-mail, First Class Mail, and Certified Mail. (Dkt. # 12, Ex. D.) The parties
communicated with one another via e-mail, and ultimately agreed that Ms.
Arensberg’s response to the September 9 discovery request was due October 26,
2015. (Dkt. # 12, Exs. E–G.) Plaintiff did not respond to the discovery request by
October 26, 2015. (Dkt. # 12 at 4.) Between October 31, 2015, and December 1,
2015, defense counsel sent Ms. Arensberg at least five communications via e-mail
and certified letter requesting the outstanding discovery responses (Dkt. # 12, Exs.
G–K); Defendant claims it has not received an answer to any of these
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communications. (Dkt. # 12 at 4.) Ms. Arensberg has not requested an extension
of time to complete discovery or otherwise communicated with this Court. On
December 9, 2015, Defendant filed the instant Motion to Dismiss for Failure to
prosecute. (Dkt. # 12.)
LEGAL STANDARD
Where a “plaintiff fails to prosecute . . . a defendant may move to
dismiss the action or any claim against it.

Unless the dismissal order states

otherwise, a dismissal under [Federal Rule of Civil Procedure 41(b)] . . . operates
as an adjudication on the merits.” Fed. R. Civ. P. 41(b). 1 “Rule 41(b) allows the
district court to dismiss an action upon the motion of a defendant, or upon its own
motion, for failure to prosecute." Berry v. CIGNA/RSI–CIGNA, 975 F.2d 1188,
1190 (5th Cir. 1992); see also Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir. 1998)
(affirming dismissal for want of prosecution where a pro se litigant failed to file
certain documents with the court, despite a Magistrate Judge’s warning four
months prior that a “failure to comply might result in dismissal.”) A court’s
authority to dismiss a case for want of prosecution is based upon its “power to
manage and administer [its] own affairs to ensure the orderly and expeditious

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A case should only be dismissed with prejudice for failure to prosecute in “the
most egregious of cases.” Boudwin v. Graystone Ins. Co., Ltd., 765 F.2d 399, 401
(5th Cir. 1985) (quoting Rogers v. Kroger, 669 F.2d 317, 320 (5th Cir. 1982)).
This is not an egregious case.
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disposition of cases.’” Berry, 975 F.2d at 1191 (quoting Link v. Wabash R.R. Co.,
370 U.S. 626, 630–31 (1962)).
DISCUSSION
Judge Mathy’s order directed Ms. Arsenberg to a free pro se litigation
manual published by the Western District of Texas and advised Plaintiff that
failure to communicate with this Court or comply with legal rules could result in
dismissal for failure to prosecute. (Dkt. # 4 at 5–6.) This Court’s scheduling order
set the deadline for parties to complete discovery by December 9, 2015, unless the
parties moved to extend the deadline. Ms. Arsenberg has not responded to the
Defendant’s discovery requests, has not submitted discovery requests to the
Defendant, and has not communicated with the Court to request an extension of
time to complete discovery. Ms. Arsenberg has failed to prosecute her case,
justifying dismissal of the action against Defendant.
CONCLUSION
For the reasons stated above, the Court GRANTS Defendant’s
Motion to Dismiss for want of prosecution, and DENIES AS MOOT Defendant’s
Motion to Compel Plaintiff to Participate in Discovery. (Dkt. # 12.) Plaintiff’s
claim is DISMISSED WITHOUT PREJUDICE. Plaintiff has leave to reinstate
the case within thirty days of this order, provided she file with the court a notice of

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intent to reinstate the case, and an agreement to comply with all court discovery
rules.
IT IS SO ORDERED.
DATED: San Antonio, Texas, December 10, 2015

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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