United States Court of Appeals

for the Fifth Circuit

____________

No. 22-50288

____________

Charles Edge; Adam Vara; Braden Glasson; Dakota 

Maness; Colton Newman; Lorenzo Rodriguez; Michael 

Cuellar, 

Plaintiffs—Appellants,

Ben Forrest; Mason Frakes; Thomas Gonzalez, 

Appellants,

versus

TLW Energy Services, L.L.C.; Troy Watkins, 

Defendants—Appellees.

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 5:21-CV-3

______________________________

Before Barksdale, Southwick, and Higginson, Circuit Judges.

Per Curiam:

*

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals

Fifth Circuit

FILED

May 5, 2023

Lyle W. Cayce

Clerk

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Primarily at issue is whether the district court abused its discretion by

sua sponte dismissing this action with prejudice for failing to move for default 

judgment within the time ordered by the court. VACATED and 

REMANDED.

I. 

In January 2021, Charles Edge filed this putative collective action 

under 29 U.S.C. § 216(b) against employers TLW Energy Services, L.L.C. 

(TLW), and Troy Watkins, claiming violations of the Fair Labor Standards 

Act of 1938 (FLSA), 29 U.S.C. §§ 201–209. The complaint claimed: over 

the three preceding years, defendants paid Edge and other “current and 

former employees . . . on a day-rate basis without overtime”, in violation of

FLSA overtime requirements. Defendants, represented by counsel, 

answered on 8 March 2021, denying liability and asserting, inter alia: the 

daily rates paid to Edge included both straight-time and overtime pay. Other 

employees opted-in pursuant to § 216(b). 

Defendants’ counsel moved to withdraw on 5 November 2021, stating 

defendants were unresponsive and had not paid legal fees. The court on 9 

November both granted withdrawal and directed Watkins to advise the court 

by 9 January 2022 whether he would proceed pro se or obtain new counsel, 

with TLW, by the same date, to inform the court of its new counsel, as an 

LLC cannot appear pro se. 

Defendants never filed those advisories. And, subsequent to

counsel’s withdrawal, no filings have been made by, or on behalf of, 

defendants in district court, nor have they participated in this appeal.

The record reflects defendants provided some discovery prior to that 

withdrawal, the extent of which is unclear. (As discussed infra, the court 

instructed plaintiffs to provide it with particular evidence regarding overtime 

payments. Plaintiffs state they cannot obtain the evidence because the nonCase: 22-50288 Document: 00516739790 Page: 2 Date Filed: 05/05/2023
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participating defendants are unavailable for further discovery, which implies 

that whatever defendants produced was insufficient.) 

After the court ordered the above-referenced advisories, but before 

they were due, plaintiffs on 19 November 2021 moved for partial summary 

judgment on liability, claiming they: were employees of defendants and 

covered by FLSA; worked more than 40 hours per week during their 

employment; and were paid on a day-rate basis. Although defendants, as 

stated above, had asserted in their answer that the day-rates included both 

straight and overtime pay, plaintiffs claimed FLSA does not allow overtime 

premiums to be included in a daily rate. Therefore, plaintiffs claimed: 

defendants’ paying that daily rate was per se a violation of FLSA; and the only 

matter needing further consideration was the amount of damages. 

After defendants failed to answer timely the partial summaryjudgment motion, the court by a 16 December 2021 order directed

defendants to respond by 28 December and warned their failing to do so 

“may result in the motion being considered as unopposed”. After 

defendants failed to respond, the court on 25 January 2022 entered an order

directing them to show cause by 9 February why default should not be 

entered against them. See Fed. R. Civ. P. 55(a) (allowing entry of default 

against defendant who “has failed to plead or otherwise defend”); Sindhi v. 

Raina, 905 F.3d 327, 332 (5th Cir. 2018) (providing Rule 55 allows court to 

enter default against party for failure to comply with court orders). Once 

again, defendants did not respond; and the clerk was instructed to enter 

default on 25 February. 

The court denied plaintiffs’ partial summary-judgment motion on 3 

March 2022. It ruled they failed to make a prima facie showing of their claims 

because: they did not provide authority supporting “paying a day rate is a 

per se FLSA violation”; and there was insufficient evidence for the court to 

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determine whether defendants failed to pay proper overtime premiums 

because it needed “information that shows the total amount of the day rate, 

the amounts that composed the ‘straight time’ and overtime, and what TLW 

actually paid”. 

Additionally, referring to the above-referenced default entered against 

defendants, the court stated plaintiffs had “one final opportunity to present 

evidence of [defendants’] alleged failure to pay overtime”. It directed 

plaintiffs to move for default judgment within 30 days after the clerk’s entry 

of default, and warned it would “be vital” they provide the above-described 

evidence in order for the court to determine whether there was an overtime 

violation. 

The court noted further it was unclear whether the summaryjudgment motion was by Edge alone or on behalf of all plaintiffs and 

instructed that any default-judgment motion needed to be clear on that point. 

Finally, the court warned that failure to move for default judgment within the 

allotted time might lead to involuntary dismissal pursuant to Rule 41(b)

(action subject to involuntary dismissal if plaintiff “fails to prosecute or to 

comply with [the Federal Rules of Civil Procedure] or a court order”). 

Instead of moving for default judgment as directed, plaintiffs moved

on 28 March for reconsideration of the order denying their partial summaryjudgment motion, or alternatively, pursuant to 28 U.S.C. § 1292(b), for the 

court to certify the denial of that motion for immediate appeal and stay 

proceedings pending appeal. Plaintiffs again claimed: including overtime 

premiums in a daily rate is a per se FLSA violation; therefore, liability was 

uncontested; and the court’s ruling otherwise was contrary to precedent. 

The court denied the motion on 7 April, providing: “‘Day rate’ as a 

term of art does not relieve the Court of its responsibility to determine 

whether the alleged day rate scheme was illegal”. It ruled, as before, that 

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there was insufficient evidence to determine whether the proper overtime 

had been paid. Finally, because plaintiffs elected to file the motion for 

reconsideration rather than moving timely for default judgment, the court 

dismissed all claims with prejudice and directed the clerk to close the case. 

II.

Plaintiffs claim the court erred in: dismissing this action with 

prejudice; and denying partial summary judgment. As noted supra, 

defendants have not participated in this appeal.

A. 

Sua sponte dismissals under Rule 41(b) are reviewed for abuse of 

discretion. E.g., Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014). This 

review, however, is understandably “more exacting” where, as here, the 

dismissal is with prejudice. Id. We will affirm “only if: (1) there is a clear 

record of delay or contumacious conduct by the plaintiff, and (2) lesser 

sanctions would not serve the best interests of justice”. Id. It bears emphasis 

that “[b]ecause this test is conjunctive, both elements must be present”. Id.

Additionally, in “most cases where this Court has affirmed dismissals 

with prejudice”, at least one of the following aggravating factors have been 

found: “(1) delay caused by the plaintiff himself and not his attorney; (2) 

actual prejudice to the defendant; or (3) delay caused by intentional 

conduct”. In re Deepwater Horizon, 988 F.3d 192, 197 (5th Cir. 2021) 

(citation omitted). 

Plaintiffs contend the following in asserting the court erred in 

dismissing their claims with prejudice. Because defendants are in default, 

they are liable to plaintiffs without need for further evidence. The court 

placed an erroneous burden of proof on plaintiffs and required them to 

produce evidence which they could not obtain, because, as discussed supra,

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it was in possession of defendants who would not participate in further 

discovery. (The remainder, and vast majority, of plaintiffs’ brief addresses 

the merits of their denied partial summary-judgment motion, requesting this 

court render partial summary judgment in their favor and remand for a 

hearing on damages.) 

We hold the court abused its discretion in dismissing plaintiffs’ action

with prejudice because neither of the requisite elements listed above, and 

addressed infra, are present. 

First, there is no “clear record of delay” by plaintiffs. Coleman, 745 

F.3d at 766. “Generally, where a plaintiff has failed only to comply with a 

few court orders or rules, we have held that the district court abused its 

discretion in dismissing the suit with prejudice.” Berry v. CIGNA/RSICIGNA, 975 F.2d 1188, 1191 n.6 (5th Cir. 1992).

Although plaintiffs did not move for default judgment within the time 

specified by the court, they did seek reconsideration within that period. A 

single instance of failing to strictly adhere to a court-set deadline is short of 

the severity of conduct our court has required for the “clear record of delay” 

element to be met. Compare Campbell v. Wilkinson, 988 F.3d 798, 802 (5th 

Cir. 2021) (reversing dismissal where “court did not explain why a mere 45-

day delay” justified dismissal with prejudice), and Raborn v. Inpatient Mgmt. 

Partners Inc., 278 F. App’x 402, 405 (5th Cir. 2008) (no clear record of delay

where party’s counsel attended pre-trial conferences and, “except for the 

two mentioned in the dismissal order”, complied with court’s orders and 

instructions), and Berry, 975 F.2d at 1191 (“The district court apparently 

dismissed [plaintiff’s] lawsuit merely because of [plaintiff’s] failure to file a 

motion for default judgment. . . . [T]his does not amount to a clear record of 

delay or contumacious conduct . . . .”), and Morris v. Ocean Sys., Inc., 730 

F.2d 248, 252–53 (5th Cir. 1984) (reversing dismissal where no “significant 

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periods of total inactivity” (citation omitted)), with Roberts v. Yellen, 858 F. 

App’x 744, 746–47 (5th Cir. 2021) (clear record of delay where party was 

inactive in proceedings for 26 months), and Griggs v. S.G.E. Mgmt., L.L.C., 

905 F.3d 835, 844–45 (5th Cir. 2018) (affirming dismissal where party 

“persistently refused” to comply with court order). 

It goes without saying that, in this default scenario, it was not in 

plaintiffs’ interest to delay. Rather, the delays were the fault of defendants. 

They were given several opportunities to explain and cure their lack of 

participation; yet, plaintiffs’ action was dismissed for failing to comply with 

a single deadline.

Second, “there has been no showing of the futility of lesser 

sanctions”. Berry, 975 F.2d at 1192. “Lesser sanctions include assessments 

of fines, costs, or damages against plaintiff, conditional dismissal, dismissal 

without prejudice, and explicit warnings.” Thrasher v. City of Amarillo, 709 

F.3d 509, 514 (5th Cir. 2013) (citation omitted). Because plaintiffs had 

complied with all prior deadlines and orders, there is little to support any

sanctions being needed to secure future compliance, much less that these 

lesser sanctions would not have been effective. See Campbell, 988 F.3d at 

802; see also Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982) (providing 

dismissal with prejudice “is reserved for the most egregious of cases”).

Additionally, none of the above-provided three aggravating factors are 

present: there is nothing to suggest any delay was because of plaintiffs, rather 

than their counsel; defendants were not prejudiced, because they were not 

participating in the proceedings; and there is no evidence plaintiffs’ counsel 

intended to delay the proceedings by filing the motion for reconsideration. 

See Campbell, 988 F.3d at 802.

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B. 

Regarding plaintiffs’ requesting our court render partial summary 

judgment in their favor, summary judgment rulings are reviewed de novo. 

E.g., McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298, 301 (5th Cir. 1993). Our

court, as needed, raises jurisdictional questions sua sponte and reviews them 

de novo. E.g., Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001). 

The denial of summary judgment is usually a non-final order, resulting 

in this court’s lacking jurisdiction to consider it (subject to exceptions, such 

as regarding qualified immunity). E.g., Jackson v. City of Atlanta, 73 F.3d 60, 

62 (5th Cir. 1996); In re Corrugated Container Antitrust Litig., 694 F.2d 1041, 

1042 (5th Cir. 1983). But, under the merger rule, interlocutory rulings merge 

into a final judgment and are generally subject to review on appeal from that 

judgment. E.g., Diece-Lisa Indus., Inc. v. Disney Enters., Inc., 943 F.3d 239, 

248 (5th Cir 2019); Sindhi, 905 F.3d at 331; Dickinson v. Auto Ctr. Mfg. Co., 

733 F.2d 1092, 1102 (5th Cir. 1983).

Courts, however, apply the merger doctrine differently when the 

appealed final judgment is an involuntary dismissal as a sanction for 

plaintiff’s failure to prosecute or failure to comply with court orders, typically 

declining to address interlocutory rulings, although their reasoning varies. 

Some courts hold it is a matter of jurisdiction; others, a matter of discretion;

and some are unclear. Compare Shannon v. Gen. Elec. Co., 186 F.3d 186, 191–

93 (2d Cir. 1999) (holding no jurisdiction because “interlocutory orders 

should not ordinarily merge with a final judgment dismissing an action for 

failure to prosecute”), and R & C Oilfield Servs. LLC v. Am. Wind Transp.

Grp. LLC, 45 F.4th 655, 659–660 (3d Cir. 2022) (holding no jurisdiction), 

with Sere v. Bd. of Trs. of Univ. of Ill., 852 F.2d 285, 288 (7th Cir. 1988) 

(providing merger rule is “inapplicable where adherence would reward a 

party for dilatory and bad faith tactics”), and Bertha v. Hain, 787 F. App’x 

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334, 337–38 (7th Cir. 2019) (“We would not apply the [merger]rule if it would 

encourage bad-faith tactics.” (emphasis added) (citing Sere, 852 F.2d at 288)), 

and AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 

1233, 1237 (10th Cir. 2009) (“There is no statute, rule, or precedent 

requiring an exception to the merger rule when the final judgment is a 

dismissal for failure to prosecute and this court sees no reason to adopt such 

a rule. Rather, the better approach is a prudential rule allowing the appellate 

court to review an interlocutory order . . . in that rare case when it makes 

sense to do so.”). See also John’s Insulation, Inc. v. Addison & Assocs., Inc., 

156 F.3d 101, 105–08 (1st Cir. 1998); Knoll v. Am. Tel. & Tel. Co., 176 F.3d 

359, 366 (6th Cir. 1999); DuBose v. Minnesota, 893 F.2d 169, 171 (8th Cir. 

1990); Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996).

Our court, likewise, has regularly refused to rule on adverse 

interlocutory orders on appeal from involuntary dismissals. In doing so, 

however, it has applied both a jurisdictional and a discretionary approach. 

For example, in one factually similar case, in reversing an involuntary 

dismissal for failure to comply with discovery orders under Rule 37(b), our 

court held the “denial of Plaintiff’s Motion for Partial Summary Judgment 

[was] not a final decision as to which this Court [had] appellate jurisdiction”. 

Gonzalez v. Trinity Marine Grp., Inc., 117 F.3d 894, 899 (5th Cir. 1997). 

In another, in reversing a dismissal for failure to prosecute under Rule 

16(f) (allowing court to, inter alia, dismiss action for party’s failure to obey 

scheduling and other pretrial orders), our court “exercise[d] [its] discretion 

not to address the merits of the [denied] motion for summary judgment”. 

Hurman v. Port of Hous. Auth., 990 F.2d 626, 1993 WL 117842, at *3 n.6 (5th 

Cir. 1993) (unpublished, but precedent pursuant to 5th Cir. R. 47.5.3). 

Rather than treating the issue as jurisdictional, the panel relied on the 

principle that a court may, in its discretion, deny a summary-judgment 

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motion even when movant has otherwise met his burden, where the court 

doubts the wisdom of concluding the case early; therefore, the losing party to 

that motion does “not have the right to have summary judgment granted”. 

Id.

More recently, our court declined to consider an interlocutory ruling 

on appeal of a Rule 41(b) dismissal, providing: “in the context of dismissal 

for failure to prosecute, courts prudently decline to review adverse 

interlocutory rulings because the matter under review is the dismissal itself”. 

Griggs, 905 F.3d at 845 n.54. The Griggs opinion cited many of the abovecited decisions from other circuits, some treating the matter as jurisdictional, 

others as discretionary; thus, it is uncertain which particular rational was 

applied. But, the discretionary approach appears to have been taken.

Accordingly, while our precedent is unclear whether this rule is 

jurisdictional or discretionary, and assuming we do have jurisdiction, we 

exercise our discretion not to address the summary-judgment order. Instead, 

we remand this case to district court.

C.

On remand, plaintiffs are to have an opportunity to move for default 

judgment in accordance with the procedure provided in Rule 55(b)(2) and 

the principles mentioned below. See Wooten v. McDonald Transit Assocs., Inc., 

788 F.3d 490, 497–500 (5th Cir. 2015) (Rule 55 allows plaintiffs to submit 

evidence to “‘establish the truth of any allegation [in their complaint]’ . . .

[and] flesh[] out [their] claim”. (quoting Fed. R. Civ. P. 55(b)(2)(C))). 

In this regard, “[t]he role of a district court in adjudicating a motion for 

default judgment is limited”, and the “court takes as true the facts asserted 

by a plaintiff against a defaulting defendant”. Escalante v. Lidge, 34 F.4th 

486, 492 (5th Cir. 2022). 

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In addition, the court should consider the effect, if any, of plaintiffs’ 

contention that defendants’ unavailability for supplemental discovery (and 

perhaps insufficient prior discovery) prevents plaintiffs from producing the 

evidence the court requested, and, relatedly, whether appropriate sanctions 

pertaining to that lack of evidence are warranted against defendants. See 

Grunberg v. City of New Orleans, 1994 WL 574194, at *2 (5th Cir. 1994) 

(unpublished, but precedent pursuant to 5th Cir. R. 47.5.3) (“If precise 

evidence of hours worked by the employee is not available due to the 

employer’s failure to keep adequate records, the employee may satisfy his 

burden with admittedly inexact or approximate evidence.” (citation 

omitted)); U.S. For Use of M-CO Const., Inc. v. Shipco Gen., Inc., 814 F.2d 

1011, 1012–13 (5th Cir. 1987) (affirming default judgment where defendant 

answered, denied liability, and asserted affirmative defenses, but because 

defendant subsequently failed to comply with discovery orders, court struck 

defendant’s pleadings as sanctions and granted plaintiff default judgment).

III.

For the foregoing reasons, we VACATE and REMAND for further 

proceedings consistent with this opinion. 

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