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Rogers v. Sorrells, 3:15-CV-961-N (BT). (2018)

Court: District Court, N.D. Texas Number: infdco20180326c37 Visitors: 10
Filed: Feb. 23, 2018
Latest Update: Feb. 23, 2018
Summary: FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE REBECCA RUTHERFORD , Magistrate Judge . This case has been referred to the United States Magistrate Judge for pretrial management. Plaintiff Karen Rogers, proceeding pro se, filed this civil action on March 27, 2015. See Compl. [ECF No. 3]. Defendants Linda Sorrells 1 and Donald W. Hill filed separate answers on June 30, 2015 and July 1, 2015, respectively. See Answers [ECF Nos. 12 & 14]. The Court issue
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FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States Magistrate Judge for pretrial management. Plaintiff Karen Rogers, proceeding pro se, filed this civil action on March 27, 2015. See Compl. [ECF No. 3]. Defendants Linda Sorrells1 and Donald W. Hill filed separate answers on June 30, 2015 and July 1, 2015, respectively. See Answers [ECF Nos. 12 & 14]. The Court issued a Scheduling Order [ECF No. 19] on December 14, 2015, and when the Scheduling Order was returned to the Court as undeliverable because Plaintiff moved and did not update her address correctly, the Court entered an Amended Scheduling Order [ECF No. 22] on February 22, 2016. The Amended Scheduling Order required the parties to complete discovery by September 16, 2016, and file dispositive motions no later than November 18, 2016. None of the parties filed a dispositive motion by the deadline set forth in the Amended Scheduling Order. In fact, there has been no activity by the parties in this case since May 10, 2016, when Plaintiff filed her "Response to Defendants' Motion for Summary Judgment" [ECF No. 24]. Plaintiff's "Response" asked the Court to deny Defendants' Motion for Summary Judgment, although no such motion was ever filed. Plaintiff's "Response" did not seek any affirmative relief. Further, the Court has been notified, by activity in another case pending in a different district court that Defendant Donald W. Hill died on May 13, 2017. See 2/8/2018 Clerk's Notice (stating that in 3:07-CR-289-M, USA v. Don W. Hill, the US Probation Office notified the Court in the Report on Offender Under Supervision [ECF No. 1940] that Don W. Hill died on May 13, 2017).

This case has been pending for almost three years, and it has failed to proceed beyond the most preliminary stages. The docket does not reflect that the parties have engaged in discovery, or taken any other action to move this case to trial. The deadline for filing dispositive motions expired more than fourteen months ago. Defendant Donald W. Hill died approximately nine months ago, and his death will almost certainly complicate any efforts to conduct discovery and dispose of this case on the merits. Plaintiff, as the party who initiated this litigation, is primarily responsible for the progress of this case. She has failed to diligently prosecute her claims.

In view of these circumstances, on February 8, 2018, the Court ordered Plaintiff to show cause why this case should not be dismissed for failure to prosecute. Plaintiff was ordered to file a written response to the Court's Show Cause Order by February 22, 2018. See Order 3 [ECF No. 26]. Plaintiff was advised that unless she demonstrates good cause for failing to advance this litigation, the Court intends to recommend to the District Court that this action be dismissed. See Order 4. Plaintiff failed to file the written response as ordered.

"A district court may sua sponte dismiss an action for failure to prosecute under Rule 41(b)." Hickerson v. Christian, 283 F. App'x 251, 253 (5th Cir. 2008) (citing McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988); FED. R. CIV. P. 41(b)). "This authority flows from the court's inherent power to 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, 626 (1962)). The dismissal may be with or without prejudice. Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996). "A dismissal with prejudice is appropriate only if the failure to comply with the court order was the result of purposeful delay or contumaciousness and the record reflects that the district court employed lesser sanctions before dismissing the action." Id. at 880 (citing Burden v. Yates, 644 F.2d 503 (5th Cir. 1981)).

Upon consideration of the foregoing, the undersigned recommends that the District Court DISMISS this case without prejudice for Plaintiff's failure to prosecute.

SO RECOMMENDED.

FootNotes


1. The answer filed by Defendant Linda Sorrells indicates that Plaintiff misspelled Defendant's last name in her original Complaint. See Answer [ECF No. 12].
Source:  Leagle

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