IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

DE-ERIC COOPER, §

PLAINTIFF, §

 §

V. § CASE NO. 3:22-CV-702-K-BK

 §

NATIONAL CREDIT SYSTEMS, INC., §

DEFENDANT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this case has been referred to the 

undersigned United States magistrate judge for pretrial management. For the reasons stated here, 

Plaintiff’s Complaint and Demand for Jury Trial, Doc. 3, should be DISMISSED WITHOUT

PREJUDICE.

I. BACKGROUND

In March 2022, Plaintiff filed this civil action alleging that Defendant violated the Fair 

Debt Collection Practices Act, 15 U.S.C. § 1962 et seq., by publishing false information on his 

credit report. Doc. 3, passim. Thereafter, Plaintiff was responsible for (1) serving Defendant 

pursuant to Federal Rule of Civil Procedure 4 within 90 days and (2) registering as a user of the 

Court’s electronic filing system pursuant to Northern District of Texas Local Civil Rule 5.1(f). 

In December 2023, after Plaintiff failed to comply, the Court reminded Plaintiff of his 

obligations and sua sponte extended the deadline for compliance to January 3, 2024. Doc. 6; 

Doc. 7. The Court also warned Plaintiff once again that his failure to do so might result in the 

dismissal of his case. Doc. 6; Doc. 7. Once again, Plaintiff failed to comply.

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Nevertheless, the Court sua sponte extended until January 16, 2024, the deadlines to 

effectuate service of process on Defendant and register for electronic filing. Doc. 8. As 

previously, the Court stressed that, “FAILURE TO COMPLY WITH THIS ORDER MAY 

RESULT IN THE DISMISSAL OF THIS ACTION PURSUANT TO FEDERAL RULE OF 

CIVIL PROCEDURE 41(b).” Doc. 8 (emphasis in original). As of the date of this 

recommendation, however, Plaintiff has failed to comply with either directive. 

II. APPLICABLE LAW

Courts may dismiss a civil action sua sponte for failure to prosecute or failure to comply 

with the federal rules or any court order. FED. R. CIV. P. 41(b); Larson v. Scott, 157 F.3d 1030, 

1031 (5th Cir. 1998). “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., 

Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1962)). 

Such a dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d 878, 879-80 

(5th Cir. 1996). However, where, as here, the statute of limitations has run on the party’s claim, 

dismissal without prejudice operates as dismissal with prejudice. Burden v. Yates, 644 F.2d 503, 

505 (5th Cir. Unit B 1981). 

Even so, a Rule 41(b) dismissal with prejudice is appropriate upon a clear record of delay 

or contumacious conduct by the plaintiff and a finding that lesser sanctions would not suffice. 

Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992) (citation omitted). Generally, 

the Court must find one or more of the following aggravating factors: (1) delay attributable to the 

plaintiff, not to her attorney; (2) actual prejudice to the defendant; and (3) delay caused by 

intentional misconduct, to warrant dismissal with prejudice. Id.

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III. ANALYSIS

Because the alleged FDCPA violation occurred in 2021, at the latest, the applicable 

limitations period has passed. See 15 U.S.C. § 1692k(d) (establishing a limitations period of one 

year from the date the violation occurred). Thus, a dismissal without prejudice will effectively 

be dismissal with prejudice since Plaintiff will be unable to timely re-assert his claim. See 

Burden, 644 F.2d at 505. That notwithstanding, dismissal under Rule 41(b) is warranted given 

Plaintiff’s clear record of delay and contumacious conduct.

As outlined supra, Plaintiff was twice ordered to serve Defendant and register for 

electronic filing and twice warned that failure to do so may warrant dismissal of his case. 

Plaintiff alone bears the responsibility for his noncompliance with the Court’s orders, as he is 

proceeding pro se. Because this case has been pending for almost two years, the actual prejudice 

caused to Defendant by further delay outweighs Plaintiff’s interest in a decision on the merits. 

Lastly, Plaintiff’s unexcused noncompliance with multiple court orders constitutes “intentional 

misconduct.” At bottom, no lesser sanction would encourage Plaintiff to diligently prosecute his 

case in light of the Court’s previous warnings. 

IV. CONCLUSION

For the reasons stated here, Plaintiff’s Complaint and Demand for Jury Trial, Doc. 3, 

should be DISMISSED WITHOUT PREJUDICE, and this case should be CLOSED.

SO RECOMMENDED on January 22, 2024.

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner 

provided by law. Any party who objects to any part of this report and recommendation must file 

specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 

636(b)(1); FED. R. CIV. P. 72(b). An objection must identify the finding or recommendation to 

which objection is made, state the basis for the objection, and indicate where in the magistrate 

judge’s report and recommendation the disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before the magistrate judge is not specific. 

Failure to file specific written objections will bar the aggrieved party from appealing the factual 

findings and legal conclusions of the magistrate judge that are accepted or adopted by the district 

court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 

1415, 1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending 

the time to file objections to 14 days).

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