Sai v. Transp. Sec. Admin. Sai v. Transp. Sec. Admin. (N.D. Tex., 2015)

Copy Citation

SAI, Plaintiff, v. TRANSPORTATION SECURITY ADMINISTRATION (TSA), Defendant.

No. 3: 15-cv-3220-P-BN

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

December 8, 2015

FINDINGS CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

        This case has been referred to the undersigned United States magistrate judge for initial screening pursuant to 28 U.S.C. 636(b) and a standing order of reference from Chief Judge Jorge A. Solis. The undersigned issues the following findings of fact, conclusions of law, and recommendation that the Court should dismiss Plaintiff Sai's lawsuit without prejudice for failure to prosecute and obey orders of this Court pursuant to Federal Rule of Civil Procedure 41(b).

        Based on the Motion for CM/ECF Access for Case Initiation Dkt. No. 3 Plaintiff filed to commence this action, this appears to be a civil action under the Freedom of Information Act against the Transportation Security Administration, see id. at 1 n. 1. But, as the Court explained to Plaintiff in the Notice of Deficiency and Order issued October 7, 2015:

Page 2

Dkt. No. 4.

        It is now almost one month since the deadline for Plaintiff to properly initiate this action by submitting a paper complaint and paying the applicable filing fee or moving for leave to proceed in forma pauperis and it is now more than two months since the Court issued its notice of deficiency and order, and Plaintiff has failed to comply with the order or otherwise contact the Court.

        Federal Rule of Civil Procedure 41(b) allows a court to sua sponte dismiss an action "with or without notice to the parties, " Boudwin v. Graystone Ins. Co Ltd 756 F.2d 399 401 (5th Cir. 1985), for failure to prosecute or for failure to comply with the federal rules or any court order. Such authority "flows from the court's inherent power

Page 3

to control its docket and prevent undue delays in the disposition of pending cases. " Id. (citing Link v. Wabash R. R. Co 370 U.S. 626 (1962)); see also Rosin v. Thaler 450 F. App'x 383, 383-84 (5th Cir. 2011) (per curiam) ("A district court may sua sponte dismiss an action for failure to prosecute or failure to obey a court order. " (citing FED. R. CIV. P. 41(b); McCullough v. Lynaugh 835 F.2d 1126 1127 (5th Cir. 1988))).

        A Rule 41(b) dismissal may be with or without prejudice. See Long v. Simmons 77 F. 3d 878, 879-80 (5th Cir. 1996). But 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. Id. at 880; see Berry v. CIGNA/RSI-CIGNA 975 F.2d 1188, 1191 (5th Cir. 1992). "Several" of the following four factors generally must be present before a district court may dismiss an action with prejudice based on a litigant's refusal to follow a court order:

Doe v. American Airlines 283 F. App'x 289, 291 (5th Cir. 2008) (per curiam) (quoting F. D. I. C. v. Conner 20 F. 3d 1376, 1380 (5th Cir. 1994); other citations omitted); see also Clewis v. Medco Health Solutions Inc No. 3: 12-cv-5208-L, 2014 WL 840026, at *6 (N.D. Tex. A.K. A.K. J.J. Marsh. 4, 2014) (distinguishing Berry - in which the Fifth Circuit stated, "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. " 975 F.2d at 1191 n. 6

Page 4

(citations omitted) - because "in Berry the plaintiff's conduct was merely negligent, and he had not been warned by the court prior to dismissal, " whereas Clewis's conduct was "intentional and willing").

        By failing to respond to the Court's notice of deficiency and order, Plaintiff has prevented this action from proceeding and, therefore, has failed to prosecute this lawsuit and obey the Court's order. A Rule 41(b) dismissal of Plaintiff's lawsuit without prejudice is warranted under these circumstances, and the undersigned concludes that lesser sanctions would be futile. The Court is not required to delay the disposition of this case until such time as Plaintiff decides to comply with the Court's order. Accordingly, 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.

        Plaintiff's action should be dismissed sua sponte without prejudice pursuant to Federal Rule of Civil Procedure 41(b). If, however, within 14 days of the date of this recommendation, Plaintiff complies fully with the Court's previous order Dkt. No. 4, the Court should refer this action back to the undersigned United States magistrate judge for further consideration.

        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

Page 5

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: December 8, 2015

        /s/_________        DAVID L. HORAN        UNITED STATES MAGISTRATE JUDGE