IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30422

consolidated with No. 13-30423

Summary Calendar

BILLY RAY FARMER, III; DIANA FARMER,

Plaintiffs - Appellants

v.

LOUISIANA ELECTRONIC AND FINANCIAL CRIMES TASK FORCE; 

TOBY AGUILLARD; MARCUS MCMILLIAN; UNITED STATES OF 

AMERICA,

Defendants - Appellees

BILLY RAY FARMER, III; DIANA FARMER,

Plaintiffs - Appellants

v.

THOMAS H. YOUNG, JR.,

Defendant - Appellee

Appeals from the United States District Court 

for the Eastern District of Louisiana

U.S.D.C. No. 2:10-CV-2971

Before WIENER, OWEN, and HAYNES, Circuit Judges.

United States Court of Appeals

Fifth Circuit

FILED

January 16, 2014

Lyle W. Cayce

Clerk

 Case: 13-30422 Document: 00512503495 Page: 1 Date Filed: 01/16/2014
Nos. 13-30422 & 13-30423

PER CURIAM:*

In this consolidated appeal, Billy Ray Farmer III and Diana Farmer

(collectively, the “Plaintiffs”) appeal the district court’s dismissal of their 

claims against the Louisiana Electronic and Financial Crimes Task Force (the 

“Task Force”), Toby Aguillard, and Marcus McMillian, and the district court’s 

partial denial of their motion for default judgment against Thomas Young. We 

VACATE and REMAND the district court’s dismissal of the Plaintiffs’ claims 

against Aguillard and McMillian and AFFIRM the remaining judgments.

I.

The Plaintiffs sued the Task Force, Aguillard, McMillian, and Young in 

Louisiana state court, asserting various state and federal causes of action 

related to the search of their house and the arrest of Billy Farmer. The Task 

Force, acting through the United States Attorney, removed the case to federal 

court pursuant to 28 U.S.C. § 1442(a)(1), averring that the Task Force was an 

agency of the United States.1 The Task Force later filed a motion to dismiss 

the claims against it for lack of subject matter jurisdiction pursuant to the 

Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et seq. The district court 

granted this motion because, inter alia,2 it found that the United States was 

* 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.

1 The Task Force is comprised of federal, state, and local law enforcement personnel 

and was established by the United States Secret Service, a federal law-enforcement agency 

that is a component of the Department of Homeland Security, as part of the Patriot Act of 

2001.

2 Citing Sampson v. United States, 73 F. App’x. 48, 49 (5th Cir. 2003) (unpublished), 

the district court also dismissed the Plaintiffs’ constitutional tort claims against the Task 

Force on the ground that the United States has not waived sovereign immunity for 

constitutional torts. The Plaintiffs abandon this issue on appeal by failing to mention it in 

their brief. See Webb v. Investacorp, 89 F.3d 252, 257 n.2 (5th Cir. 1996). Therefore, we 

review only whether the Plaintiffs’ common law tort claims were properly dismissed pursuant 

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Nos. 13-30422 & 13-30423

the proper defendant and that the Plaintiffs failed to exhaust their 

administrative remedies as required by the FTCA in order to assert common 

law tort claims against the United States.3

Thereafter, defendants Aguillard and McMillian filed a motion to 

dismiss, requesting that the district court dismiss the Plaintiffs’ claims against 

them with prejudice for failure to comply with the district court’s scheduling 

order and failure to prosecute. The district court granted the motion. 

The Plaintiffs then filed a motion for default judgment against Young, 

the sole remaining defendant. After a hearing on the motion, the district court 

entered judgment for $19,351.61 in favor of Billy Farmer for unlawful arrest 

under 42 U.S.C. § 1983. However, the district court denied default judgment 

on the Plaintiffs’ claim for malicious prosecution under § 1983 and denied relief 

to Diana Farmer on the unlawful arrest claim. 

II.

We review de novo the district court’s dismissal of the Plaintiffs’ claims 

against the Task Force for lack of subject matter jurisdiction. Willoughby v. 

United States ex rel. U.S. Dep’t of the Army, 730 F.3d 476, 479 (5th Cir. 2013). 

The Plaintiffs bear the burden of establishing that subject matter jurisdiction 

exists. See id. 

to the FTCA.

3 After the district court dismissed the Plaintiffs’ claims against the Task Force, the 

Plaintiffs filed an administrative claim with the Secret Service, which the Secret Service 

denied. The Plaintiffs then filed a separate action in the district court against the United 

States, alleging claims under the FTCA for the events forming the basis for the instant suit. 

See Farmer v. United States, Civ. No. 12-1960 Sec. “S” (3), 2012 U.S. Dist. LEXIS 160405 

(E.D. La. Nov. 8, 2012) (unpublished). The United States moved to dismiss, this time 

contending that the Plaintiffs’ untimely filing of their administrative claims deprived the 

court of jurisdiction. The district court granted the motion. Id. The plaintiffs timely 

appealed, and a panel of this court affirmed the district court’s dismissal of this second action.

See Farmer v. United States, No. 12-31255, 2013 U.S. App. LEXIS 18729 (5th Cir. Sept. 9, 

2013) (unpublished). The instant appeal decides whether the district court properly 

dismissed the Plaintiffs’ claims against the Task Force in the initial action.

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Nos. 13-30422 & 13-30423

A plaintiff may only sue the United States if its sovereign immunity is 

explicitly waived in a federal statute; this is a jurisdictional requirement. In 

re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 287 (5th Cir. 

2012). The FTCA is the exclusive waiver of sovereign immunity for tort claims 

against the United States or its agencies. See 28 U.S.C. §§ 1346, 2679(a); 

Willoughby, 730 F.3d at 479. The FTCA conditions a court’s jurisdiction on the

plaintiff’s compliance with 28 U.S.C. § 2675(a), which mandates that such a 

suit not be instituted until a plaintiff files an administrative claim with the 

appropriate federal agency and the claim is finally denied by that agency. See 

Price v. United States, 69 F.3d 46, 54 (5th Cir. 1995). The United States, and 

not the agency itself, is the proper defendant in an FTCA action. Galvin v. 

OSHA, 860 F.2d 181, 183 (5th Cir. 1988).

There is no dispute that the Task Force is a federal agency as defined by 

the FTCA. See 28 U.S.C. § 2671 (defining “Federal agency” as including 

“executive departments, . . . independent establishments of the United States, 

and corporations primarily acting as instrumentalities or agencies of the 

United States”).4 Accordingly, the United States is the proper defendant, and 

the FTCA is the Plaintiffs’ exclusive remedy for their common law tort claims. 

As such, subject matter jurisdiction is conditioned on the filing and final denial 

of an administrative claim. Because this jurisdictional requirement was not 

satisfied, the district court lacked subject matter jurisdiction over the 

Plaintiffs’ claims against the Task Force.5 The district court properly 

4 In their initial complaint, the Plaintiffs acknowledged that the Task Force was 

organized by the United States under congressional authority and was acting under the 

authority of the United States.

5 Since the United States, and not the agency itself, is the proper defendant, an FTCA 

claim against a federal agency instead of the United States must be dismissed for want of 

jurisdiction. Galvin, 860 F.2d at 183. The district court lacked jurisdiction over the Plaintiffs’ 

claims against the Task Force on this basis as well.

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dismissed these claims.

Next, the district court dismissed the Plaintiffs’ claims against Aguillard 

and McMillian with prejudice because the Plaintiffs failed to comply with the 

court’s scheduling order and failed to offer any reasonable explanation for the 

lapse. See FED. R. CIV. P. 41(b). A dismissal with prejudice is “an extreme 

sanction that deprives a litigant of the opportunity to pursue his claim.”

Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008) (citation 

and internal quotation marks omitted). It is reserved for those cases “where 

the plaintiff’s conduct has threatened the integrity of the judicial process, often 

to the prejudice of the defense, leaving the court no choice but to deny that 

plaintiff its benefits.” Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982). 

Accordingly, we have limited the district courts’ discretion to use a dismissal 

with prejudice as a sanction. Millan, 546 F.3d at 326. We affirm dismissals 

with prejudice for failure to prosecute “only when (1) there is a clear record of 

delay or contumacious conduct by the plaintiff, and (2) the district court has 

expressly determined that lesser sanctions would not prompt diligent 

prosecution, or the record shows that the district court employed lesser 

sanctions that proved to be futile.” Tello v. Comm’r, 410 F.3d 743, 744 (5th Cir. 

2005) (quoting Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 

1992)). In those cases where we have affirmed dismissals with prejudice, we 

have also generally found at least one of three aggravating factors: (1) delay 

On appeal, instead of attempting to establish that subject matter jurisdiction exists, 

the Plaintiffs take issue with the fact that the Task Force removed the case to federal court 

pursuant to 28 U.S.C. § 1442(a)(1), as opposed to filing a certificate of scope of employment 

for the individual defendants and removing to federal court pursuant to 28 U.S.C. 

§ 2679(d)(2). The Plaintiffs also make reference to § 2679(d)(5) and equitable tolling. We do 

not consider these arguments because the Plaintiffs did not raise them before the district 

court. See Horton v. Bank One, 387 F.3d 426, 435 (5th Cir. 2004) (“Arguments not raised in 

the district court cannot be asserted for the first time on appeal.” (citation and internal 

quotation marks omitted)).

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caused by the plaintiffs themselves; (2) actual prejudice to the defendants; or 

(3) delay caused by intentional conduct. Millan, 546 F.3d at 326.

In this case, the record supports the district court’s conclusion that the

Plaintiffs failed to comply with the pretrial order. However, the district court 

did not (1) expressly determine in its order of dismissal that lesser sanctions 

would not prompt diligent prosecution; (2) consider lesser sanctions (such as 

exclusion of evidence or witnesses not revealed); or (3) employ lesser sanctions 

to no avail. The district court’s order of dismissal only went so far as to state 

that the “Plaintiffs’ failure to comply with the deadlines set forth in this court’s 

scheduling order demonstrates a complete disregard for this court’s procedures 

and justifies dismissal with prejudice.”6 Dismissal with prejudice is the 

“ultimate sanction,” which “should be imposed only after full consideration of 

the likely effectiveness of less-stringent measures.” Hornbuckle, 732 F.2d at 

1237. Because we cannot determine from the district court’s order why lessstringent measures were not employed or whether they were fully considered,

we vacate the district court’s dismissal with prejudice and remand for an 

express determination of these matters. See, e.g., id.

Finally, we review the district court’s partial denial of the Plaintiffs’ 

motion for default judgment for abuse of discretion. See Settlement Funding, 

LLC v. TransAmerica Occidental Life Ins., 555 F.3d 422, 424 (5th Cir. 2009). 

6 We realize that the Plaintiffs filed a motion to alter or amend judgment, and in 

denying this motion, the district court stated, inter alia, that “lesser sanctions would not have 

been appropriate because the case had been pending for more than two years, and the trial 

date was [less than a month away].” Nevertheless, this statement does not explain why lesser 

sanctions would not prompt diligent prosecution, nor does it appear from the record that the 

trial date could not be reset in conjunction with imposing lesser sanctions. A delayed trial 

does not mean that lesser sanctions will prove ineffective. See, e.g., Hornbuckle v. Arco Oil 

& Gas Co., 732 F.2d 1233 (5th Cir. 1984) (reversing dismissal with prejudice where plaintiff’s

counsel refused to commence trial as scheduled); Rogers, 669 F.2d 317 (reversing dismissal 

with prejudice where plaintiff’s counsel announced not ready at trial and sought a 

continuance). It also does not analyze whether lesser sanctions, such as exclusion of 

undisclosed evidence, would have been sufficient punishment for the non-disclosure.

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We may affirm the district court’s judgment on any grounds supported by the 

record. See Sobranes Recovery Pool I, LLC v. Todd & Hughes Constr. Corp., 

509 F.3d 216, 221 (5th Cir. 2007). The act of default alone does not entitle a 

plaintiff to receive a default judgment in its favor; instead, the judgment 

sought must be supported by well-pleaded allegations. See Nishimatsu Constr. 

Co. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). 

The district court did not err in denying default judgment on the 

Plaintiffs’ malicious prosecution claim. This claim fails as a matter of law 

because a freestanding claim for malicious prosecution may not be maintained 

under 28 U.S.C. § 1983. See Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 

812–13 (5th Cir. 2010) (citing Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 

2003) (en banc)). We likewise find no error in the district court’s denial of relief 

to Diana Farmer on the unlawful arrest claim. Since she was not arrested, her 

claim fails as a matter of law. See Parm v. Shumate, 513 F.3d 135, 142 (5th 

Cir. 2007) (“In order to prevail in a § 1983 claim for false arrest, a plaintiff 

must show that he was arrested without probable cause in violation of the 

Fourth Amendment.”).

We AFFIRM the district court’s dismissal of the Plaintiffs’ claims against 

the Task Force and partial denial of the Plaintiffs’ motion for default judgment. 

We VACATE the district court’s dismissal with prejudice of the Plaintiffs’ 

claims against Aguillard and McMillian and REMAND for further proceedings 

consistent with this opinion.

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 Case: 13-30422 Document: 00512503495 Page: 7 Date Filed: 01/16/2014