IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SAMUEL NIBLETT, §

§

Plaintiff, §

§

v. § Civil Action No. 3:05-CV-1435-M

§

AMERICAN OIL & GAS CORP., et al., §

§

Defendants. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the District Court’s Standing Order of Reference, entered October 7, 2005, this

case has been referred to the United States Magistrate Judge for pretrial management. In an order

entered October 31, 2005, the Court ordered the parties to file a status report and proposed

scheduling order. Plaintiff failed to respond to the Court’s order. In an order entered March 1,

2006, the Court ordered Plaintiff to show cause why he has not responded to the Court’s order.

Plaintiff did not respond to this order, nor has the Court been able to contact Plaintiff. For the

reasons stated below, the Court recommends that the District Court dismiss Plaintiff’s case without

prejudice for failure to prosecute.

DISCUSSION

Federal Rule of Civil Procedure 41(b) allows the Court to dismiss a case if the plaintiff fails

to prosecute the case or fails to abide by the rule or orders of the Court. FED. R. CIV. P. 41(b).

Federal Rule of Civil Procedure 16(f) grants the Court discretion to impose sanction upon a party

for failing “to obey a scheduling or pretrial order.” FED. R. CIV. P. 16(f). Federal Rule of Civil

Procedure 37(b) outlines the types of sanctions that courts may impose due to a party’s failure to

comply with a court order, include dismissal. FED. R. CIV. P. 37(b)(2)(C). 

 

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“The same criteria developed for evaluating dismissals for failure to prosecute under [Rule]

41(b) are to be applied in a [R]ule 16(f) case.” Price v. McGlathery, 792 F.2d 472, 474 (5th Cir.

1986) (per curiam).

Because dismissal is a harsh sanction, the Court should not invoke it unless “‘a clear record

of delay or contumacious conduct by the plaintiff’ exists and ‘lesser sanctions would not serve the

best interests of justice.’” Id. (quoting Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982)).

Before dismissing a case for failure to prosecute, the Court should find that one of the following

aggravating factors is present: (1) delay caused by the plaintiff him or herself and not by his or her

attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct. Id.

In this case, Plaintiff has displayed a clear record of delay. The date of Plaintiff’s last filing

was September 6, 2005. In an order entered on September 14, 2005, the Court instructed Plaintiff

that he had 120 days to serve Defendants, but Plaintiff has yet to effectuate service upon Defendants.

In an order entered October 31, 2005, the Court ordered Plaintiff to file a status report and proposed

scheduling order, which Plaintiff failed to do. In an order entered March 1, 2006, the Court ordered

Plaintiff to show cause, which he also failed to do. The Court specifically ordered Plaintiff to show

cause why the Court show not recommend dismissal of this case, and Plaintiff has failed to provide

the Court with any reason why the case should not be dismissed. The Court has made efforts to

contact Plaintiff and has been unable to reach him. Plaintiff has displayed a long period of inactivity

in this case. See Morris v. Ocean Systems, Inc., 730 F.2d 248, 252 (5th Cir. 1984) (indicating that

“‘significant periods of total inactivity’ . . . have been held to constitute a clear record of delay”)

(quoting Ramsay v. Bailey, 531 F.2d 706, 709 (5th Cir. 1976) (per curiam)). Accordingly, the Court

concludes that Plaintiff has displayed “a clear record of delay.” See Rogers, 669 F.2d at 320.

In addition, the Court finds that one the three aggravating factors is present - the delay is

 

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caused by Plaintiff himself, not his attorney. See Price, 792 F.2d at 474. Plaintiff is proceeding pro

se in this litigation. Therefore, only Plaintiff can be blamed for the delay. The Court, accordingly,

concludes that the District Court should dismiss Plaintiff’s case for failure to prosecute.

The Court now turns to the issue of whether the District Court should dismiss Plaintiff’s case

with or without prejudice. “Because of the severity of a dismissal with prejudice when used as a

sanction . . . we have stated that it is ‘a drastic remedy to be used only in those situations where a

lesser sanction would not better serve the interests of justice.’” Morris, 730 F.2d at 251 (quoting

Burden v. Yates, 644 F.2d 503, 505 (5th Cir. 1981)). To dismiss with prejudice for failure to

prosecute, the Court must make specific findings that a lesser sanction would be inadequate. See

Callip v. Harris County Child Welfare Dep’t, 757 F.2d 1513, 1521 (5th Cir. 1985) (per curiam). The

United States Court of Appeals for the Fifth Circuit has “suggested alternatives to dismissal,

including the ‘[a]ssessment of fines, costs, or damages against the plaintiff or his counsel, attorney

disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’”

Id. (quoting Rogers, 669 F.2d at 322.) Because the Court or the District Court has yet to impose any

other sanctions upon Plaintiff, the Court recommends that the District Court dismiss Plaintiff’s case

without prejudice. See Callip, 757 F.2d at 1522 (affirming the district court’s dismissal with

prejudice for failure to prosecute partly because the record revealed that the district court had

imposed lesser sanctions prior to dismissal).

CONCLUSION

Plaintiff has illustrated a clear pattern of delay in this case, which warrants dismissal.

RECOMMENDATION

The District Court should dismiss Plaintiff’s claims without prejudice for failure to

prosecute.

 

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Signed this 29th day of March, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these conclusions and

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these conclusions and recommendation must serve and file written

objections within ten days after being served with a copy. A party filing objections must specifically

identify those conclusions or recommendation to which objections are being made. The District

Court need not consider frivolous, conclusory or general objections. A party's failure to file such

written objections to these proposed conclusions and recommendation shall bar that party from a de

novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985).

Additionally, any failure to file written objections to the proposed conclusions and recommendation

within ten days after being served with a copy shall bar the aggrieved party from appealing the legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of

plain error. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en

banc).

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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