IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

MARCUS L. WILLIS, § 

 § 

Plaintiff, § 

 § 

V. § No. 3:22-cv-1251-E-BN 

 § 

WESTERN POWER SPORTS, INC., § 

 § 

Defendant. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Marcus L. Willis filed this pro se lawsuit against Defendant Western 

Power Sports, Inc. alleging, among other claims, racial discrimination and 

retaliation. See Dkt. No. 3. At that time, Willis moved for leave to proceed in forma 

pauperis. See Dkt. No. 4. So United States District Judge Ada Brown referred Willis’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. 

Willis then paid the $402 filing fee and, by doing so, assumed the responsibility 

to properly serve the named defendant with a summons and a complaint in 

compliance with Federal Rule of Civil Procedure 4. See, e.g., FED. R. CIV. P. 4(h) 

(setting forth procedures for serving a corporation, partnership, or association); see 

also FED. R. CIV. P. 4(d) (regarding a defendant’s waiving service). 

The Court notified Willis of this obligation through an order entered on August 

8, 2022, which further advised Willis 

that, if proper service is not made – and shown to the Court through 

filed proofs of service or filed waivers of service – before the 90th day 

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after his filing of this action (on June 9, 2022) that is not a Saturday, 

Sunday, or legal holiday – which, here, will be September 7, 2022 – 

this case is subject to dismissal without prejudice unless he shows both 

(1) good cause for his failure to timely and properly effect service and (2) 

good cause for the Court to extend the time for service for an appropriate 

period. See FED. R. CIV. P. 4(m); see also FED. R. CIV. P. 41(b) (providing 

for dismissal, with or without prejudice, for failure to prosecute and obey 

court orders). 

Dkt. No. 6. 

While Willis filed an incomplete Waiver of Service of Summons on August 17, 

2022, see Dkt. No. 6, this filing does not reflect that the named defendant waived 

service of process. Willis has otherwise not shown that proper service was made or 

waived by September 7 nor complied with the August 8 order or contacted the Court. 

Federal Rule of Civil Procedure 4(m) authorizes a district court to, after 

providing notice, dismiss a case sua sponte without prejudice for a plaintiff’s failure 

to effectuate service on a defendant within 90 days of filing the complaint. See, e.g., 

Davis v. Bank of Am., NA, No. 3:12-cv-1036-M-BF, 2012 WL 4795591 (N.D. Tex. Oct. 

9, 2012). 

While “[a] pro se plaintiff is entitled to notice before a district court dismisses 

an action, sua sponte, for failure to timely serve the defendants under Rule 4(m),” 

Drgac v. Treon, No. H-07-4283, 2008 WL 4746984, at *1 (S.D. Tex. Oct. 27, 2008) 

(citing Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir. 1996)), “[a] plaintiff’s 

pro se status and ignorance of the law do not constitute cause for his failure to effect 

service in compliance with the rules,” id. (citing Kersh v. Derozier, 851 F.2d 1509, 

1512 (5th Cir. 1988)). 

That is, “a litigant’s pro se status does not excuse failure to effect proper 

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service,” Zellmar v. Ricks, No. 6:17cv386, 2021 WL 805154, at *2 (E.D. Tex. Feb. 2, 

2021) (citing Sys. Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th 

Cir. 1990)), rec. adopted, 2021 WL 796133 (E.D. Tex. Mar. 2, 2021), as “[t]he party 

effecting service has the burden of showing the validity of service,” Walker v. Forte, 

No. 5:19cv158, 2021 WL 6930957, at *1 (E.D. Tex. Nov. 9, 2021) (citing Sys. Signs 

Supplies, 903 F.2d at 1013; Matter of Arbitration Between Trans Chem. Ltd. v. China 

Nat. Mach. Imp. & Exp. Corp., 978 F. Supp. 266, 298 (S.D. Tex. 1997), op. adopted, 

161 F.3d 314 (5th Cir. 1998)), rec. adopted, 2022 WL 468031 (E.D. Tex. Feb. 15, 2022); 

see also Savage v. Reliance Mortg. Corp., No. 6:17-cv-00053-RP-JCM, 2018 WL 

4702535, at *3 (W.D. Tex. June 7, 2018) (“[T]he right of self-representation does not 

exempt a party from compliance with the relevant rules of civil procedure.” (citing 

Kersh, 851 F.2d at 1512)), rec. accepted, 2018 WL 4688785 (W.D. Tex. Aug. 27, 2018). 

And “Rule 4 requires only that the court notify a claimant that dismissal is 

impending for lack of timely service.” Roberts v. U.S. Dep’t of Army, 275 F.3d 42, 2001 

WL 1223674, at *1 (5th Cir. Sept. 26, 2001) (per curiam) (citing FED. R. CIV. P. 4(m)). 

The court need not also guide a plaintiff “on how to effect proper service.” Id.

Here, the Court not only provided Willis the required notice but also directed 

Willis to the proper provisions of Rule 4. See Dkt. No. 5. Yet, Willis failed to effect 

proper service or obtain a waiver from the defendant in the time allowed by the 

relevant rules. The Court should therefore dismiss this lawsuit without prejudice 

under Rule 4(m). 

Further, Rule 41(b) “authorizes the district court to dismiss an action sua 

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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))). 

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

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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 

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

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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 August 8 order – in addition to leaving the 

impression that he no longer wishes to pursue these claims – Willis 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 Willis 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 Willis’s refiling these claims. 

But, insofar as this dismissal may somehow prejudice Willis, 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. See 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, 

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

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

omitted)). 

Recommendation

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

Civil Procedure 4(m) and 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: October 24, 2022 

 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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