Opinion
Civil Action, Section "T"(4)NO: 00-3094
April 16, 2002
Before the Court is a Motion to Dismiss Counter-Claims and Enter Final Judgment filed on behalf of the plaintiff, Great White Fleet (US) Ltd. ("Great White"). The parties waived oral argument and this matter was submitted for the Court's consideration on March 15, 2002. The Court, having considered the memorandum filed, the record and the applicable law, is full-advised in the premises and ready to rule.
ORDER AND REASONS
I. Background
On August 21, 2001, this Court granted plaintiff Great White's Motion for Summary Judgement and entered judgment against defendant, DSCV Transport ("DSCV"), in the amount of $415,250. The Court also awarded attorneys' fees and costs based on the parties' contract and referred the matter to the Magistrate Judge for a determination of the amount of fees and costs to be made part of the final judgment. The Magistrate Judge recommended tat the court deny Great White's claim for attorneys' fees and plaintiff then submitted an objection to the Magistrate's Report and Recommendation. Based on the plaintiff's memorandum, this Court did not adopt the recommendation of the Magistrate Judge and granted Great White's motion on April 2, 2002, awarding plaintiff $51,877.00 and $2,611.66 for fees and costs respectively.
While the Court initially granted plaintiff's Motion for Summary Judgment on its claim against DSCV, it denied Great White's summary judgment motion seeking dismissal of DSCV's counter-claims finding that the Federal Maritime Commission ("FMC') had primary jurisdiction over disputes involving the Shipping Act. The Court then suspended the proceedings in order to permit the administrative agency to apply its own expertise on the issue before the court. The Court deferred ruling pending action by the FMC and ordered the parties to report on the status of the FMC proceedings on January 8,2002.
On November 21,2001, counsel for the defendant moved to withdraw due to inability on the part of DSCV's counsel to obtain the necessary information or cooperation from DSCV to meet their professional responsibilities to this Court. Additionally, DSCV had failed to meet long-standing financial obligations to counsel's firm. This Court subsequently granted the motion to withdraw and ordered that new counsel be enrolled on or before December 14, 2001, the failure of which "may result in a dismissal of the action for failure to prosecute and abide by this court's order." At the January 8,2002 status conference, it became apparent that DSCV had failed to enroll new counsel pursuant to the Court's order and also had not pursued the action with the FMC.
II. Law and Analysis:
Federal Rule of Civil Procedure 16(f) provides that:
[i]f a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, . . . the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B),(C),(D). Fed.R.Civ.P. 16(f).
Rule 37(b)(2)(C) allows the Court to dismiss the action or proceeding for failure to abide by the Court's Order. Additionally, Federal Rule of Civil Procedure 41(b) empowers the Court to involuntarily dismiss an action with prejudice, "[f]or failure of the plaintiff to prosecute or to comply with [the Federal Rules of Civil Procedure] or any order of the court." Fed.R.Civ.P. 41(b).
This Court recognizes that it has broad discretion in choosing the appropriate sanction for violation of the Court's orders. Because a dismissal with prejudice is such an extreme sanction, the Fifth Circuit has clearly delineated when such a sanction will be upheld. Callip v. Harris Country Child Welfare Department, 757 F.2d 1513 (5th Cir. 1985). A district court's dismissal of a case with prejudice will be upheld only where (1) there is a clear record of delay or contumacious conduct by the plaintiff, and (2) the district court has expressly determined that lesser sanctions would not prompt diligent prosecution, or the record shows that the district court employed lesser sanctions that proved to be futile.Id. Moreover, the Fifth Circuit requires the presence of at least one of three aggravating factors in failure to prosecute cases: "(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct."Berry v. Cigna/RSI-Cigna, 975 F.2d 1188, 1191(5th Cir. 1985).
Applying these standards, the Court finds dismissal with prejudice to be an appropriate sanction under the circumstances of this case. At the status conference of January 8,2002, counsel for plaintiff informed this Court that no action had been taken by DSCV with the FMC. Additionally, defendant has not enrolled new counsel despite being ordered to do so by this Court in December of 2001. Consequently, defendant currently evidences a lack of intent to prosecute its counter-claim and this Court can only conclude that defendant no longer wishes to proceed with the action. As such, the defendant's unwillingness to abide by the Court's orders and observe established rules of civil procedure convince this Court that a sanction less than a dismissal with prejudice Would not prompt diligent prosecution or serve the interests ofjustice.
Accordingly,
IT IS ORDERED, that the defendant's counterclaims be DISMISSED WITH PREJUDICE for failure to prosecute.