Opinion
5:23-CV-00938-OLG-RBF
02-29-2024
BOBBY AGUILAR, Plaintiff, v. MARCOS SILVEIRA, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Orlando Garcia:
All pretrial matters in this action have been referred for resolution, pursuant to Rules CV-72 and 1 of Appendix C to the Local Rules for the United States District Court for the Western District of Texas. See Dkt. No. 4. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, this case should be DISMISSED for want of prosecution.
Factual and Procedural Background
Plaintiff Aguilar originally filed this lawsuit in the 73rd Judicial District Court of Bexar County, Texas and served Defendant Silveira on July 10, 2023. Dkt. No. 1 at 1. Defendant Silveira removed the case to federal court, reasoning that a reference to “excessive force” in Plaintiff Aguilar's complaint sought to bring a claim under 42 U.S.C. § 1983 for a violation of rights protected by the Fourth Amendment. Id. at 2.
Removal did not clarify Plaintiff Aguilar's possible claims. Defendant Silveira filed a motion, which this Court granted, for a more definite statement. Dkt. Nos. 3 & 5. The Court ordered Plaintiff Aguilar to file a more definite statement within 30 days of its August 30, 2023, Order. Dkt. No. 5.
More than two months later, on November 9, 2023, it came to the Court's attention that the Order had not been sent to Plaintiff Aguilar via certified mail as ordered on August 30, 2023. The Court then sent the Order by certified mail. Dkt. No. 6. However, the certified mail receipt was returned as undeliverable. Dkt. No. 7. Concerned that Plaintiff Aguilar might not have received the initial notice of removal and might therefore be unaware that the case was in federal court, the Court ordered Defendant Silveira to file proof of service of the notice of removal and provide further clarification on whether the method of service satisfied 28 U.S.C. § 1446(d). Dkt. No. 8.
Defendant Silveira's response noted that this case is one of several filed by Plaintiff Aguilar in state court. Dkt. No. 9. Additionally, Defendant's counsel knew Plaintiff Aguilar's updated mailing address from representing other defendants in state court suits filed by Plaintiff Aguilar, and Defendant's counsel provided the contact information to the Court. Id.
The Court then set this case for a status hearing to ascertain whether Plaintiff Aguilar wished to proceed with the litigation. Dkt. No. 10. The Court sent the Order setting the hearing to Plaintiff Aguilar's address of record as well as the updated address provided by Defendant Silveira. Id. While the Order again came back undeliverable to the address of record, Plaintiff Aguilar signed for the Order at the updated address, confirming his receipt of the Order setting this case for a hearing. Dkt. Nos. 12 & 13.
At the February 13, 2024, hearing, counsel for Defendant Silveira appeared, but despite having notice of the hearing, Plaintiff Aguilar did not appear. See Dkt. Nos. 13 & 15. To date, Plaintiff Aguilar has not filed any motions or documents in the case since its removal, or otherwise participated in this federal case, despite the Court's multiple attempts to contact him.
Analysis
Federal Rule of Civil Procedure 41(b) authorizes the district court to dismiss an action either sua sponte or on a defendant's motion for failure to prosecute or comply with a court order to “achieve the orderly and expeditious disposition of cases.” Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018). Here, Plaintiff Aguilar shows no intent to prosecute this lawsuit, and Aguilar has failed to comply with at least one Court order. Indeed, Plaintiff Aguilar failed to appear at the hearing and still has not responded to the Court's Order instructing him to file a more definite statement. Even assuming he did not receive the Order directing the filing of a more definite statement, Plaintiff Aguilar should have known of the removal through the exercise of reasonable diligence. The fact of removal is reflected in the state case. See 28 U.S.C. § 1446(d). And even if Plaintiff Aguilar was unaware that the case had been removed, he failed to comply with the Court's Order instructing him to appear at the February 13, 2024, hearing-which the Court confirmed he received by certified mail. Plaintiff Aguilar's continued lack of action demonstrates that he no longer wishes to prosecute this case. Having taken the aforementioned steps to engage Aguilar and secure his participation in the case, the Court has no option but to recommend that the case be dismissed.
In making this recommendation, the Court recognizes that “[t]he scope of the court's discretion is narrower when a Rule 41(b) dismissal is with prejudice or when a statute of limitations would bar re-prosecution of an action dismissed under Rule 41(b) without prejudice.” Brown v. King, 250 Fed. App'x 28, 29 (5th Cir. 2007). Nevertheless, the more-exacting scope of discretion reflects that dismissal is nonetheless warranted here because (1) there is a clear record of delay or contumacious conduct by Aguilar and (2) the Court determines that lesser sanctions would not serve the interests of justice by prompting diligent prosecution, or lesser sanctions have been employed but were futile. See Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014). In addition, at least one of the following three aggravating factors is present: “(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct.” Id. at n. 9. Indeed, “[t]he presence of one aggravating factor, along with a record of delay or contumacious conduct and consideration of lesser sanctions, will support a dismissal with prejudice.” Price v. McGlathery, 792 F.2d 472, 475 (5th Cir. 1985). As is required, “[t]he [ ] court's consideration of lesser sanctions [ ] appear[s] in the record for review of the court's exercise of its discretion.” Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1159 (5th Cir. 1985). Here, Plaintiff Aguilar has caused months of delay by his failure to participate in and prosecute his case. Furthermore, the Court has attempted to encourage Plaintiff Aguilar's participation in this case multiple times without success. Any lesser sanctions would therefore be futile. The requirements for dismissal are met under the circumstances presented, and dismissal is warranted.
Conclusion and Recommendation
For the reasons discussed above, it is recommended that this case be dismissed for want of prosecution.
Having considered and acted upon all matters for which the above-entitled and numbered case was referred, it is ORDERED that the above-entitled and numbered case is RETURNED to the District Court for all purposes.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections, responses, and replies must comply with the same page limits as other filings, unless otherwise excused by the district court's standing orders. See Rule CV-7. The objecting party shall file the objections with the clerk of the court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.