IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

BRAD ALLEN BAKER, § 

 § 

Plaintiff, § 

 § 

V. § No. 3:22-cv-852-K-BN 

 § 

VITEK GOYEL, § 

 § 

Defendant. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Brad Allen Baker filed a pro se complaint against Defendant Vitek 

Goyel requesting “restitution and a hearing due to breach of contract” and asserting 

that Goyel “stole [his] identity.” Dkt. No. 3. Baker also moved for leave to proceed in 

forma pauperis. See Dkt. No. 4. So United States District Judge Ed Kinkeade referred 

Baker’s lawsuit to the undersigned United States magistrate judge for pretrial 

management under 28 U.S.C. § 636(b) and a standing order of reference. 

On April 19, 2022, the Court observed that “the complaint and its attachments 

neither establish subject matter jurisdiction nor allege a plausible claim” and ordered 

Baker to file an amended complaint by May 19, 2022. Dkt. No. 5 (“warn[ing] Baker, 

that, if the deficiencies in the complaint are not timely cured, the undersigned will 

recommend that this action be dismissed for lack of subject matter jurisdiction or 

under 28 U.S.C. § 1915(e)(2)(B) and/or Federal Rule of Civil Procedure 41(b)”). It is 

now almost three months past the deadline set by the Court’s order, and Baker has 

neither complied with the April 19 order nor otherwise contacted the Court. 

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Rule 41(b) “authorizes the district court to dismiss an action sua sponte for 

failure to prosecute or comply with [a Federal Rule of Civil Procedure or] a court 

order.” Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (citing 

McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (per curiam)); accord 

Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 440 (5th Cir. 2016) (failure 

to comply with a court order); Rosin v. Thaler, 450 F. App’x 383, 383-84 (5th Cir. 

2011) (per curiam) (failure to prosecute); see also Campbell v. Wilkinson, 988 F.3d 

798, 800-01 (5th Cir. 2021) (holding that the text of Rule 41(b) does not extend to a 

failure to comply with a court’s local rule insofar as that violation does not also qualify 

as a failure to prosecute (discussing Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188 (5th 

Cir. 1992))). 

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)); see also Lopez v. Ark. Cnty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 

1978) (“Although [Rule 41(b)] is phrased in terms of dismissal on the motion of the 

defendant, it is clear that the power is inherent in the court and may be exercised sua 

sponte whenever necessary to ‘achieve the orderly and expeditious disposition of 

cases.’” (quoting Link, 370 U.S. at 631)); Campbell, 988 F.3d at 800 (“It is well 

established that Rule 41(b) permits dismissal not only on motion of the defendant, 

but also on the court’s own motion.” (citing Morris v. Ocean Sys., Inc., 730 F.2d 248, 

251 (5th Cir. 1984) (citing, in turn, Link, 370 U.S. at 631))). 

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And the Court’s authority under Rule 41(b) is not diluted by a party proceeding 

pro se, as “[t]he right of self-representation does not exempt a party from compliance 

with relevant rules of procedural and substantive law.” Wright v. LBA Hospitality, 

754 F. App’x 298, 300 (5th Cir. 2019) (per curiam) (quoting Hulsey v. Texas, 929 F.2d 

168, 171 (5th Cir. 1991) (quoting, in turn, Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 

Nov. 1981))). 

A Rule 41(b) dismissal may be with or without prejudice. See Long v. Simmons, 

77 F.3d 878, 879-80 (5th Cir. 1996). 

Although “[l]esser sanctions such as fines or dismissal without prejudice 

are usually appropriate before dismissing with prejudice, ... a Rule 41(b) 

dismissal is appropriate where there is ‘a clear record of delay or 

contumacious conduct by the plaintiff and when lesser sanctions would 

not serve the best interests of justice.’” 

Nottingham, 837 F.3d at 441 (quoting Bryson v. United States, 553 F.3d 402, 403 (5th 

Cir. 2008) (per curiam) (in turn quoting Callip v. Harris Cnty. Child Welfare Dep’t, 

757 F.2d 1513, 1521 (5th Cir. 1985))); see also Long, 77 F.3d at 880 (a dismissal with 

prejudice is appropriate only if the failure to comply with the court order was the 

result of purposeful delay or contumacious conduct and the imposition of lesser 

sanctions would be futile); cf. Nottingham, 837 F.3d at 442 (noting that “lesser 

sanctions” may “‘include assessments of fines, costs, or damages against the plaintiff, 

conditional dismissal, dismissal without prejudice, and explicit warnings’” (quoting 

Thrasher v. City of Amarillo, 709 F.3d 509, 514 (5th Cir. 2013))). 

“When a dismissal is without prejudice but ‘the applicable statute of 

limitations probably bars future litigation,’” that dismissal operates as – i.e., it is 

reviewed as – “a dismissal with prejudice.” Griggs, 905 F.3d at 844 (quoting 

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Nottingham, 837 F.3d at 441); see, e.g., Wright, 754 F. App’x at 300 (affirming 

dismissal under Rule 41(b) – potentially effectively with prejudice – where “[t]he 

district court had warned Wright of the consequences and ‘allowed [her] a second 

chance at obtaining service’” but she “disregarded that clear and reasonable order”). 

By not complying with the April 19 order – in addition to leaving the 

impression that he no longer wishes to pursue his claims – Baker has prevented this 

action from proceeding and has thus failed to prosecute this lawsuit. A Rule 41(b) 

dismissal of this lawsuit without prejudice is therefore warranted under these 

circumstances. Because the undersigned concludes that lesser sanctions would be 

futile, as the Court is not required to delay the disposition of this case until such time 

as Baker decides to obey the Court’s order or contact the Court, the Court should 

exercise its inherent power to prevent undue delays in the disposition of pending 

cases and sua sponte dismiss this action without prejudice under Rule 41(b). 

It is not apparent based on the record here that dismissal of this lawsuit 

without prejudice at this stage would effectively be a dismissal with prejudice – for 

example, because a statute of limitations would prevent Baker’s refiling these claims. 

But, insofar as this dismissal may somehow prejudice Baker, these findings, 

conclusions, and recommendation afford notice, and the opportunity to file objections 

(further explained below) affords an opportunity to respond, to explain why this case 

should not be dismissed for the reasons set out above. Cf. Carver v. Atwood, 18 F.4th 

494, 498 (5th Cir. 2021) (“The broad rule is that ‘a district court may dismiss a claim 

on its own motion as long as the procedure employed is fair.’ More specifically, 

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‘fairness in this context requires both notice of the court’s intention and an 

opportunity to respond’ before dismissing sua sponte with prejudice.” (citations 

omitted)). 

Recommendation

The Court should dismiss this action without prejudice under Federal Rule of 

Civil Procedure 41(b). 

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, 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). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where 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). 

DATED: August 10, 2022 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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