Filed: Oct. 03, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS October 2, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 05-31009 Summary Calendar _ MUNDAY / ELKINS AUTOMOTIVE PARTNERS LTD., doing business as Elkins Nissan Plaintiff-Appellant, versus ERIC BRANDON SMITH; ERNEST A. LANDMAN Defendants-Appellees. _ Appeal from the United States District Court for the Western District of Louisiana (No. 5:04-CV-1786) _ Before JOLLY, DENNIS, and CLEMENT, Ci
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS October 2, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 05-31009 Summary Calendar _ MUNDAY / ELKINS AUTOMOTIVE PARTNERS LTD., doing business as Elkins Nissan Plaintiff-Appellant, versus ERIC BRANDON SMITH; ERNEST A. LANDMAN Defendants-Appellees. _ Appeal from the United States District Court for the Western District of Louisiana (No. 5:04-CV-1786) _ Before JOLLY, DENNIS, and CLEMENT, Cir..
More
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 2, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 05-31009
Summary Calendar
__________________________
MUNDAY / ELKINS AUTOMOTIVE PARTNERS LTD.,
doing business as Elkins Nissan
Plaintiff-Appellant,
versus
ERIC BRANDON SMITH; ERNEST A. LANDMAN
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(No. 5:04-CV-1786)
___________________________________________________
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
*
PER CURIAM:
The plaintiff, Munday/Elkins Automotive Partners, Ltd., doing business as Elkins
Nissan (“Munday”), appeals the district court’s dismissal without prejudice for lack of
jurisdiction and failure to prosecute. We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
I. FACTS AND PROCEEDINGS
Munday brought suit against the defendants, Eric Brandon Smith and Ernest A.
Landman, as a result of an incident in which the defendants allegedly crashed their vehicle
into many other vehicles owned by Munday on Munday’s dealership property. On
August 26, 2004, Munday filed a complaint in federal court, alleging diversity jurisdiction
was proper under 28 U.S.C. § 1332. Munday is a limited partnership of which all of its
partners are allegedly Texas citizens. Smith and Landman are Louisiana citizens. The
defendants never responded to the complaint. Nearly six months after the filing of the
complaint, the clerk’s office filed a notice of intent to dismiss for failure to prosecute
pursuant to Local Rule 41.3W, which states that “[a] civil action may be dismissed by the
clerk of court or any judge of this court for lack of prosecution . . . [w]here no responsive
pleadings have been filed or default has been entered within 60 days after service of
process.” This notice afforded Munday ten days in which to file a motion for an extension
of time. Shortly thereafter, Munday filed such a motion, the court granted it, Munday
moved for default judgment, and a notice of entry of default judgment was entered by the
clerk’s office. Subsequently, the clerk’s office issued another notice of intent to dismiss for
failure to prosecute and Munday moved for an entry of default judgment.
The district court issued a minute entry, sua sponte ordering Munday to provide
information on subject matter jurisdiction, specifically the citizenship of one of the
partners. Munday filed such information, and the district court issued another minute
entry requiring that further information on subject matter jurisdiction be filed by August
2
1, 2005. Munday failed to file anything by August 1, 2005. On August 3, 2005, the district
court dismissed Munday’s case without prejudice for “failure to comply with this Court’s
instructions.” Munday moved for reconsideration and the magistrate judge granted the
motion and extended the time to file the information until August 15, 2005. After Munday
failed to file anything by August 15, 2005, the district court dismissed the case without
prejudice for lack of jurisdiction and failure to prosecute on August 23, 2005. On August
25, 2005, Munday filed another motion for reconsideration, which the district court denied.
Munday timely appealed.
II. STANDARD OF REVIEW
It is well-settled that the district court can dismiss a case sua sponte for failure to
prosecute. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (per curiam); see
also Anthony v. Marion County Gen. Hosp.,
617 F.2d 1164, 1167 (5th Cir. 1980) (“Not only
may a district court dismiss for want of prosecution upon motion of a defendant, but it
may also sua sponte dismiss an action whenever necessary to achieve the orderly and
expeditious disposition of cases.”) (internal quotation omitted). The court of appeals
reviews such a dismissal for abuse of discretion. Rogers v. Kroger,
669 F.2d 317, 320 (5th
Cir. 1982).
III. DISCUSSION
We must first consider the issue of subject matter jurisdiction. Bridgmon v. Array
Sys. Corp., 325 F.3d 572, 575 (5th Cir. 2003). If subject matter jurisdiction is not proper, we
must dismiss Munday’s appeal for want of jurisdiction.
Id.
3
The evidence presently before the court indicates that diversity jurisdiction is
proper. Given, however, that the unheeded order from the district court sought to
discover more about the citizenship of one of the partners in Munday, it is possible that
further fact development could indicate that diversity jurisdiction is not proper. Moreover,
as we affirm the district court’s dismissal without prejudice for failure to prosecute, we,
like the district court, do not reach the merits of the case. See Bader v. Atlantic Int’l, Ltd.,
986 F.2d 912, 916 (5th Cir. 1993).
Munday argues that dismissal without prejudice for failure to prosecute is too harsh
in light of the facts. The caselaw cited by Munday does not support this argument.
Munday cites United States v. Blevins, a case that involved the dismissal of an
indictment. 142 F.3d 223, 225 (5th Cir. 1998). The interests involved in dismissing an
indictment are completely different than those in a civil case. In addition, the processes
for refiling a civil case and for indicting a defendant again are completely different.
Blevins is not persuasive here.
Munday also relies on three cases involving dismissals with prejudice, which
therefore are inapposite. See Gonzalez v. Trinity Marine Group, 117 F.3d 894, 898 (5th Cir.
1997); see also Williams v. Chicago Board of Education,
155 F.3d 853, 854, 857 (7th Cir.
1998) (per curiam); Palmer v. City of Decatur,
814 F.2d 426, 429 (7th Cir. 1987). The harm
from a dismissal with prejudice is quite different from that from a dismissal without
prejudice. See Sharif v. Wellness Int’l Network, Ltd.,
376 F.3d 720, 725 (7th Cir. 2004)
(“Because a plaintiff may refile the same suit on the same claim, dismissal without
4
prejudice does not constitute such a harsh sanction and does not foreclose a determination
on the merits.”).
Finally, Munday cites to cases involving dismissals without prejudice but in which
the statute of limitations may effectively render the case dismissed with prejudice because
of a time bar. See Gray v. Fidelity Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981) (per
curiam); Boazman v. Economics Laboratory, Inc.,
537 F.2d 210, 212 (5th Cir. 1976)
(“[W]here the dismissal is without prejudice, but the applicable statute of limitations
probably bars further litigation, the standard of review of the District Court's dismissal
should be the same as is used when reviewing a dismissal with prejudice.”). The only
harm that Munday articulates is the cost of refiling and reserving the suit and a delay in
time. We cannot conclude that the district court abused its discretion in dismissing
without prejudice for failure to prosecute.
IV. CONCLUSION
The judgment of the district court is AFFIRMED.
5
