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 Plaintiff disputes this fact, but other than his own affidavit, he has no other evidence to refute

the form contract provided by Defendant. See Doc. No. 48 (3:05-CV-01029-O) (N.D. Tex. Aug. 14,

2006) (“Memorandum Opinion and Order” at pp. 1-2, n.1, n.2).

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN H. GARNER,

Plaintiff,

v. 

MBNA, NA,

 Defendant.

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CIVIL ACTION NO. 3:05-CV-1029-O

MEMORANDUM OPINION AND ORDER 

On August 21, 2008, the Court held a show cause hearing on this matter regarding

Plaintiff’s failure to comply with the Court’s orders. Plaintiff failed to appear. The Court now

considers whether Plaintiff’s remaining claims should be dismissed for failure to prosecute under

Rule 41(b) of the Federal Rules of Civil Procedure. 

I. BACKGROUND

This case arises out of a billing dispute between Plaintiff, John H. Garner, and Defendant,

MBNA America Bank, N.A. (“MBNA”) concerning a line of credit. The parties entered into a

written agreement whereby MBNA opened a line of credit for Garner, and he agreed to pay

monthly billings. The agreement between the parties contained a binding arbitration provision.1

Thus, when a billing dispute later arose between the parties MBNA filed suit in the National

Arbitration Forum. The arbitration panel ultimately found in favor of MBNA, and on January 14,

2005, it awarded $23,777.69 plus interest. After receiving notice of the award, Plaintiff filed suit
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in state court on April 6, 2005 seeking to vacate the arbitration award. Specifically, Plaintiff

pleaded a breach of contract and violation of due process arising from MBNA’s act of referring

the dispute to arbitration. Additionally, Plaintiff pleaded a violation of the federal Truth-inLending Action, 15 U.S.C. §1601 et seq., based on allegations that MBNA failed to respond to a

billing inquiry regarding his December 2003 statement of account. See Doc. No. 1 (3:05-CV1029-O) (N.D. Tex. May 19, 2005) (Def’s Notice of Removal at Ex. A). 

On May 19, 2005, MBNA removed Plaintiff’s suit to this Court based on federal question

jurisdiction. Id. On October 4, 2005, MBNA filed its motion for summary judgment and motion

to confirm th arbitration award against Plaintiff. See Doc. No. 16 (3:05-CV-1029-O) (N.D. Tex.

Oct. 4, 2005). Plaintiff filed a response in opposition. Doc. No. 25, 26 (3:05-CV-1029-O) (N.D.

Tex. Oct. 18, 2005). On August 14, 2006, this Court entered its revised Memorandum Opinion

and Order granting MBNA’s motion to confirm the arbitration award, and granting MBNA’s

motion for summary judgment on Plaintiff’s breach of contract claim. Doc. No. 48 (3:05-CV1029-O) (Aug. 4, 2006). The Court further dismissed Plaintiff’s procedural due process claim for

failure to state a cause of action. Id. Based on the Court’s rulings, the arbitration award issued on

January 14, 2005 in favor of MBNA in the amount of $23,777.69 is confirmed. Id. Plaintiff’s

claim under the Truth-in-Lending Act remained pending for trial.

On August 4, 2006, the Court entered a scheduling order setting the case for trial on

February 5, 2007. Doc. No. 47 (3:05-CV-1029-O) (N.D. Tex. Aug. 4, 2006). On January 26,

2007, the Court entered an Amended Scheduling Order resetting the case for trial on the April

2007 docket. Doc. No. 74 (3:05-CV-1029-O) (N.D. Tex. Jan. 26, 2007). The parties filed

witness and exhibit lists, pretrial disclosures, proposed jury instructions on March 16, 2007 and

March 19, 2007. See id., Doc. Nos. 78-84. On April 4, 2007, Plaintiff filed a motion for
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continuance representing that the parties had engaged in settlement discussions and “were ‘within

90 percent’ of reaching a settlement; with both parties agreeing that only minor details needed to

be worked out.” See Doc. No. 90 (3:05-CV-1029-O) (N.D. Tex. Apr. 4, 2007) (Mot. at 1).

Plaintiff further represented that he expected to finalize the settlement in 90 to 120 days. (Mot. at

2). On August 1, 2007, the Court entered an order granting Plaintiff’s motion for continuance and

ordered the parties to report regarding the status of the settlement within 30 days from the date of

the order. Doc. No. 91 (3:05-CV-1029-O) (N.D. Tex. Aug. 3, 2007). 

On September 3, 2007, Plaintiff filed correspondence that the Court construed as a status

report regarding settlement and a request for an extension of 60 to 90 days to finalize settlement

negotiations. Doc. No. 93 (3:05-CV-1029-O) (N.D. Tex. Sept. 3, 2007). On September 12, 2007,

MBNA filed a response opposing Plaintiff’s motion for further continuance, and representing that

it had received no communications from Plaintiff regarding resolution of the remaining claim.

Doc. No. 96 (3:05-CV-1029-O) (N.D. Tex. Sept. 12, 2007). Plaintiff filed a reply and declaration

averring that he required “an additional 90 days effective from the time of this filing to be able to

align and complete this phase of the work I have started on this geographical scale, and that I

fully expect to be prepared for settlement negotiations after that time.” Doc. No. 100 (3:05-CV1029-O) (N.D. Tex. Oct. 2, 2007). While Plaintiff’s declaration stated he intended on settling this

matter, his stated 90-day period expired on December 31, 2007 and no notice of settlement was

provided to the Court. 

On July 18, 2008, the Court sua sponte reviewed the record and ordered the parties to file

a joint status report no later than July 31, 2008. Doc. No. 102 (3:05-CV-1029) (N.D. Tex. July

18, 2008). Plaintiff filed correspondence responding to the court’s order and essentially

representing that no settlement had been reached to date. Doc. No. 103 (3:05-CV-1029) (N.D.
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Tex. July 30, 2008) (Ltr. at 1). Plaintiff further requested an extension of 80 to 90 days to finally

resolve the matter. (Ltr. at 2). Defendant filed a status report indicating that Plaintiff had made

no attempts to settle this matter with MBNA and therefore, it opposed any further continuances

and requested that the Court to dismiss Plaintiff’s case for want of prosecution. Doc. No. 104

(3:05-CV-1029-O) (N.D. Tex. Aug. 1, 2008).

On August 4, 2008, the Court entered a trial scheduling order setting the case for trial on

September 29, 2008. Doc. No. 105 (3:05-CV-1029-O) (N.D. Tex. Aug. 4, 2008). By separate

order the Court referred the case to United States Magistrate Judge Irma Carrillo Ramirez for a

court-order settlement conference. Doc. No. 106 (3:05-CV-1029-O) (N.D. Tex. Aug. 4, 2008).

The order required the parties to contact Magistrate Judge Ramirez’s chambers no later that 5:00

p.m. on Friday, August 8, 2008 to arrange the details of the settlement conference. Id. To date,

Plaintiff has made no contact with Magistrate Judge Ramirez. On August 11, 2008, Magistrate

Judge Ramirez entered an order setting the settlement conference for 9:00 a.m. on August 28,

2008. Doc. No. 108 (3:05-CV-1029-O) (N.D. Tex. Aug. 11, 2008). This order further required

the parties to (1) “confirm their attendance at least two days prior to the conference by contacting

Ms. Lisa Martin at (214) 753-2167, (2) to exchange a demand and counter-offer, and (3) send a

fax copy to Magistrate Judge Ramirez. (Order at 1, 2). Plaintiff was required to tender a

settlement demand no later than 5:00 p.m. on Thursday, August 21, 2008. (Order at 2) Plaintiff

failed to submit a demand.

On August 18, 2008, Plaintiff filed correspondence acknowledging receipt of: (1) the

Court’s trial scheduling order, (2) the order referring the case to Magistrate Judge Ramirez for a

settlement conference, and (3) the show cause order. See Doc. No. 110 (3:05-CV-1029-O) (N.D.

Tex. Aug. 18, 2008) (Ltr at 1 (“your order arrived at my quarters . . . with instructions that I was
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to inform the court by August 21, 2008 of my proposal for settling . . . . On August 14, 2008, I see

the front page of an order to show cause”)). Plaintiff further requested a stay of all proceedings

until September 30, 2008. Id. The Court entered an Order denying motion to stay on August 19,

2008, and again ordered that Plaintiff was required to appear at the show cause hearing on August

21, 2008. Doc. No. 111 (3:05-CV-1029-O) (N.D. Tex. Aug. 19, 2008). The order again warned

that failure to appear and show cause would result in dismissal without further notice or

proceedings. Id. Plaintiff did not appear. Finally, Plaintiff was required to call Magistrate Judge

Ramirez’s chambers no later than August 26, 2008 to confirm his attendance at the court-ordered

settlement conference, and he failed to do so.

II. ANALYSIS

Rule 41(b) of the Federal Rules of Civil Procedure allows a district court to involuntarily

dismiss a case “[f]or failure of the plaintiff to prosecute or to comply with [the] rules or any order

of the court.” FED. R. CIV. P. 41(b). Simply, a district court may dismiss plaintiff’s suit with

prejudice as a sanction for violating a court order or rule. Berry v. CIGNA/RSI-CIGNA, 975 F.2d

1188, 1190 (5th Cir. 1992). To support a dismissal with prejudice for failure to prosecute, the

Fifth Circuit requires a showing of (1) a clear record of delay or contumacious conduct by

plaintiff, and (2) a finding that lesser sanctions would not prompt diligent prosecution. Raymond

v. Univ. of Houston, 275 Fed. Appx. 448, *1 (5th Cir. Apr. 29, 2008). The Fifth Circuit has found

that a “clear record of delay” is shown by “significant periods of total inactivity.” Berry, 975

F.2d at 1191 n.5.

Having reviewed the record in this case, the Court finds that Plaintiff has intentionally

delayed prosecution of this case. Since April 2007, Plaintiff has made representations that he

intended to settle all claims with Defendant and move to dismiss his suit. Although Plaintiff
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stated that in his requested extensions he only needed 60 or 90 days to file dismissal papers, he

has failed to do so for sixteen (16) months. Moreover, the Court provided him with a cost-free

opportunity to appear before the United States Magistrate Judge and mediate a settlement with

Defendant. He failed to comply with the Court’s orders to contact the Magistrate Judge’s

chambers and arrange the details of the settlement conference or even confirm his appearance two

days before the scheduled settlement conference. It appears to the Court that Plaintiff is

purposely evading his responsibilities in this lawsuit, and is communicating when he feels like it,

and not communicating when he does not feel like it. Such conduct is totally unacceptable. The

Court twice-warned Plaintiff that failure to comply with the orders and appear at the show cause

hearing would result in dismissal with prejudice. Plaintiff still failed to appear. Thus, the Court

finds that there are no lesser sanctions that would prompt Plaintiff to diligently prosecute this

action.

III. CONCLUSION

For the foregoing reasons, the Court finds that Plaintiff’s remaining claim under the

Truth-in-Lending Act should be and is hereby DISMISSED with prejudice. In light of the

Court’s ruling dismissing all of Plaintiff’s remaining claims against Defendant MBNA, this order

is a final judgment.

SO ORDERED this 29th day of August, 2008.