Opinion
No. 3:16-CV-3253-M
01-08-2018
GREGORY BALLARD, JR., Plaintiff, v. JAMES RIVER INSURANCE COMPANY Defendant.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
On September 29, 2017, the District Court referred this removed civil action to the United States Magistrate Judge for mediation. See Amended Order of Referral, ECF No. 17. The undersigned set a settlement conference on November 20, 2017 at 9:00 A.M. See Order Setting Settlement Conference, ECF No. 21. At the settlement conference, the Defendant James River Insurance Company ("Defendant") and its counsel appeared in person, and Plaintiff Gregory Ballard, Jr. ("Plaintiff") failed to appear or notify the Court he was unable to appear. Defense counsel informed the Court that Plaintiff represented to Defendant that he wished to withdraw his claims. See Order Setting Show Cause Hearing, ECF No. 23. No such communication has been made to the Court. See Docket. Plaintiff was ordered by the Court to appear in person on December 7, 2017 to show cause as to why the case should not be dismissed. Plaintiff failed to appear. In the Order setting the show cause hearing, Plaintiff was warned that failure to appear may result in this Court recommending that his case be dismissed for failure to prosecute. To date, Plaintiff has failed to respond.
A court can dismiss an action sua sponte for failure to prosecute or for failure to comply with the federal rules or any court order pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). "This authority [under Rule 41(b)] flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases." Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash, R.R. Co., 370 U.S. 626 (1962)). Plaintiff has failed to respond to any orders given by this Court, including a show cause order. Moreover, Plaintiff failed to appear at a settlement conference. Accordingly, Plaintiff's Petition should be dismissed for want of prosecution.
The Court recommends that the District Court dismiss Plaintiff's Petition without prejudice for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b).
SO RECOMMENDED, this 8th day of January, 2018.
/s/_________
PAUL D. STICKNEY
UNITED STATES MAGISTRATE JUDGE