Opinion
5:22-CV-4567
01-04-2024
BONNIE BROWN v. KIN INTERINSURANCE NETWORK
S. MAURICE HICKS, JR., JUDGE
REPORT AND RECOMMENDATION
KAY, MAGISTRATE JUDGE
This suit was filed on plaintiff's behalf by the firm McClenny Moseley & Associates, PLLC (“MMA”). Doc. 1. Plaintiff became a pro se litigant by operation of an order of this court styled “Order Terminating Former MMA Counsel from Proceedings, Designating Plaintiff a Pro Se Litigant, and Other Matters” (the “Termination Order”). Doc. 14. The Termination Order set a November 29, 2023, status conference that plaintiff was ordered to attend in person. The Termination Order additionally cautioned plaintiff that
Should plaintiff fail to appear for this conference without having retained new counsel or without having sought to dismiss this suit by use of the attachment or otherwise, that failure to appear may result in adverse consequences such as a recommendation by the undersigned to the district court that the case be dismissed for failure of plaintiff to prosecute or abide by court orders.Id. (emphasis original). The Termination Order also ordered the plaintiff to, before November 29, 2023, provide proof of service of the newly-reissued summons in this matter. Id.
The court held the status conference on November 29, 2023, in the Shreveport Division of the U.S. District Court for the Western District of Louisiana. Doc. 16. Plaintiff did not appear for the status conference as instructed. Id. Additionally, plaintiff failed to file or provide the proof of service, as ordered. Plaintiff has not contacted chambers regarding the case.
At the conclusion of the status conference, the undersigned determined that a Report and Recommendation would issue recommending this case be dismissed for failure of plaintiff to prosecute or abide by court orders. Doc. 16. Since then, defendant filed a motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting that the policy referenced in the Complaint did not become effective until well after the date that plaintiff's property allegedly sustained the damage described in the Complaint. Doc. 17. The briefing deadlines on the motion to dismiss have not yet run, and therefore the court does not address the motion to dismiss at this time.
The motion to dismiss is not yet ripe and is therefore not addressed herein. However, we have recommended that a similar motion to dismiss be denied because of the constraints on our power to consider materials outside the pleadings on a Fed.R.Civ.P. 12(b) motion, such as the affidavit defendant attaches at doc. 17, att. 4. See Breedlove v. Dover Bay Specialty Ins. Co et al., No. 3:22-cv-03918 (W.D. La. 11/22/23)(Report and Recommendation, doc. 25).
Rule 1 of the Federal Rules of Civil Procedure, defining the scope and purpose of the rules governing procedure in civil actions and proceedings, instructs us to construe, administer, and employ the rules “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Rule 41(b) of the Federal Rules of Civil Procedure “allows the district court to dismiss an action upon the motion of a defendant, or upon its own motion, for failure to prosecute.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190 (5th Cir. 1992); see also Campbell v. Wilkinson, 988 F.3d 798, 801 (5th Cir. 2021) (discussing Berry). “The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.” Link v. Wabash R. R. Co., 82 S.Ct. 1386, 1388 (1962).
For these reasons, we RECOMMEND to the district court that this matter be DISMISSED WITHOUT PREJUDICE for plaintiff's failure to prosecute and abide by the orders of the court, and that the judgment provide that this civil action may be reinstated within 30 days for good cause shown, per W.D. La. Loc. Civ. R. 41.3, with any such showing to be made in writing and filed into the record of this matter.
Under the provisions of 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure, parties have fourteen (14) days from receipt of this Report and Recommendation to file written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within fourteen (14) days following the date of receipt shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See Douglas v. United Services Automobile Ass'n, 79 F.3d 1415, 1429-30 (5th Cir. 1996).