Sanchez v. Underwriters at Lloyd's London

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA TINA SANCHEZ CIVIL ACTION VERSUS NO. 22-3643 UNDERWRITERS AT LLOYD’S SECTION “R” (5) LONDON ORDER AND REASONS Before the Court is defendant’s unopposed motion to dismiss without prejudice.1 For the following reasons, the Court grants the motion. I. BACKGROUND The law firm McClenny, Moseley & Associates (“MMA”) filed this action on behalf of plaintiff on October 4, 2022.2 The case, along with all other cases filed by MMA pending in this District, was subsequently stayed due to fraudulent conduct by the firm.3 Plaintiff’s counsel withdrew, leaving her unrepresented.4 On June 30, 2023, Chief Magistrate Judge Michael North sent a letter to plaintiff notifying her of the action and informing her 1 R. Doc. 20. 2 R. Doc. 1. 3 R. Docs. 8, 9, & 12. 4 R. Docs. 10-11, 13-14. that, to proceed with the lawsuit, she could take one of three actions:5 (1) retain a new lawyer, (2) represent herself, or (3) dismiss the lawsuit and waive her rights regarding the insurance claim at issue therein.6 The letter also ordered plaintiff to notify the Court of her decision within sixty days and noted that her failure to respond may result in dismissal of her case.7 Defendant moved for involuntary dismissal with dismissal under Federal Rule of Civil Procedure 41(b) on October 19, 2023, noting that it had been more than sixty days since the letter was transmitted to plaintiff, and plaintiff has not responded.8 The Court denied the motion without prejudice, reasoning that the two-and-a-half months that had passed since plaintiff’s deadline to respond did not amount to a “clear record of delay or contumacious conduct.”9 Defendant now moves to dismiss the action without prejudice, arguing that plaintiff’s continued failure to prosecute warrants dismissal of her claims.10 The Court considers the motion below. 5 R. Doc. 15. 6 Id. 7 Id. 8 R. Docs. 20 & 20-1. 9 R. Doc. 21 at 3. 10 R. Docs. 22 & 22-1. II. DISCUSSION Federal Rule of Civil Procedure 41(b) provides that “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Dismissal with prejudice for failure to comply with a court order should be a last resort, and is warranted only upon “a clear record of delay or contumacious conduct by the plaintiff.” Bryson v. United States, 553 F.3d 402, 403 (5th Cir. 2008); see also id. (“Lesser sanctions such as fines or dismissal without prejudice are usually appropriate.”). Conversely, dismissal without prejudice is not an adjudication on the merits, and, thus, courts are afforded greater discretion in dismissing claims for failure to prosecute or failure to comply with any court order in this manner. See Brooks v. Pinkerton Sec., 3 F.3d 439 , 1993 WL 347230 , at *1 (5th Cir. 1993) (citing Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980)). Defendant requests dismissal of this action without prejudice. To date, more than four months has passed since plaintiff’s deadline to respond to Chief Magistrate Judge North’s letter.11 Given plaintiff’s ongoing failure to comply with the Court’s directive, the Court finds sufficient grounds to 11 Chief Magistrate Judge North issued the letter on June 30, 2023, which specified that plaintiff must respond within sixty days, or by August 29, 2023. R. Doc. 15. dismiss the action without prejudice. See, e.g., Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir. 1998) (affirming dismissal without prejudice of action for want of prosecution where litigant was given four months to respond to a court order, yet failed to do so, and the court warned that failure to respond could result in dismissal). II. CONCLUSION For the foregoing reasons, the Court GRANTS defendant’s motion to dismiss, and the action is DISMISSED WITHOUT PREJUDICE. New Orleans, Louisiana, this 3rd__ day of January, 2024. derek Varee. SARAH S. VANCE UNITED STATES DISTRICT JUDGE