IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

MARIA CARDONA LOPEZ and PEDRO § 

FERREIRA, § 

 § 

Plaintiffs, § 

§ 

V. § No. 3:22-cv-2034-N-BN 

§ 

ROSA SALAZAR d/b/a ROSA’S § 

CLEANER SERVICES, § 

§ 

Defendant. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiffs Maria Cardona Lopez and Pedro Ferreira, through counsel, filed an 

action under the Fair Labor Standards Act (the FLSA) against Defendant Rosa’s 

Cleaner Services, a sole proprietorship, and Rosa Salazar, its owner and operator 

(Rosa). See Dkt. No. 1. 

Chief United States District Judge David C. Godbey referred this lawsuit to 

the undersigned United States magistrate judge for pretrial management under 28 

U.S.C. § 636(b). See Dkt. No. 8. 

After Rosa answered pro se, see Dkt. No. 14, the Court entered a Preliminary 

Scheduling Order under the Civil Justice Expense and Delay Reduction Plan for the 

Northern District of Texas and Federal Rule of Civil Procedure 16(b) [Dkt. No. 15], 

which first required that by January 3, 2023 “each plaintiff shall separately answer 

the Court’s Interrogatories (attached to this Order), verify those answers, serve a copy 

on the defendant, and file the verified answers with the Court entitled ‘Notice of 

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Filing Verified Answers to Court’s Interrogatories to the Plaintiff,’” id., ¶ 2. 

After entry of the Preliminary Scheduling Order, the Court granted Plaintiffs’ 

counsel’s motion to withdraw, in which counsel stated that, “[d]espite best efforts, 

including attempts through telephone on a weekly basis since August 2022, [counsel 

has] not been able to get in contact with Plaintiffs.” Dkt. Nos. 16, 17. In doing so, the 

Court ordered that Plaintiffs be added to the docket as pro se litigants using the 

contact information provided in the motion and that the Preliminary Scheduling 

Order and order granting the motion to withdraw be sent to Plaintiffs by mail and 

email. See Dkt. No. 17. After that, both orders were returned as undeliverable. See

Dkt. Nos. 18-21. 

Federal Rule of Civil Procedure 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/RSICIGNA, 975 F.2d 1188 (5th Cir. 1992))). 

This authority “flows from the court’s inherent power to control its docket and 

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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 

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, 

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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 

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 failing to keep the Court updated as to their address(es), Plaintiffs have 

prevented this action from proceeding and have 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 Plaintiffs decide to 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). 

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It is not apparent based on the record here whether 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 Plaintiffs’ refiling these 

claims. But, insofar as this dismissal may somehow prejudice Plaintiffs, 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, 

‘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 

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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: April 11, 2023 

_________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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