Opinion
CIVIL ACTION NO. 97-2671, SECTION N
October 15, 2003
ORDER AND REASONS
Before the Court are the following motions: (1) Fluor Daniel's Motion to Dismiss for Failure to Prosecute; and (2) Beaird Industries' Motion to Dismiss for Failure to Prosecute. For the reasons that follow, both motions are DENIED, without prejudice to defendants' right to re-urge them.
I. BACKGROUND
Plaintiff Mark Moll and his wife, Beverly Moll, filed this action in state court on August 7, 1997, seeking damages for injuries that Mark Moll sustained while working on an industrial furnace in Union Carbide's petrochemical plant in Taft, Louisiana. On March 17, 1997, while Moll was attempting to release pressurized steam from the furnace, the exterior muffler disconnected from its piping, causing a piece of the muffler to strike him in the face. The muffler was specified by ABB Lummus Global, Inc. and Combustion Engineering, Inc. (collectively, "Lummus"); was designed and fabricated offsite by Fluor Daniel, Inc and Beaird Industries, Inc.; and was installed by the general contractor, H.B. Zachry Company ("Zachry"). Plaintiffs sued each of these companies.
The matter was removed to this Court, with Judge Edith Brown Clement presiding. In November 1998, defendant Lummus moved for summary judgment on grounds that Louisiana's ten-year peremptive period for actions involving the design and/or construction of immovables had expired. See La. Rev. Stat, § 9:2772. Initially, Judge Clement denied the motion. On reconsideration, however, on March 19, 1999, Judge Clement granted the motion. Shortly thereafter, on May 5, 1999, Judge Clement granted a motion dismissing Zachry on the same grounds. Pursuant to Rule 54(b), the Court issued final judgments, and plaintiffs appealed, along with defendants Beaird and Fluor Daniel. Upon joint motion of these appellants, the Judge Clement stayed this action pending resolution of the appeals. (Rec.Doc. 101). Judge Clement also closed the matter for statistical purposes. Id.
One year later, on July 24, 2000, the Fifth Circuit affirmed Judge Clement's decision dismissing Lummus and Zachary. The case, however, continued to lie closed and dormant. Then, on July 16, 2003, nearly three years to the date after the Fifth Circuit had issued its ruling, plaintiffs moved to reopen the case. Defendant Beaird opposed the motion to reopen on grounds that the matter should be dismissed for plaintiffs' failure to prosecute. The Court reopened the matter for administrative purposes only and set Beaird's request for hearing, construing it as a motion to dismiss. Shortly thereafter, Fluor Daniel filed a separate motion to dismiss for failure to prosecute. It is these motions that are before the Court.
II. LAW AND ANALYSIS
A district court's power to dismiss an action for failure to prosecute is well established. It may do so upon a defendant's motion to dismiss pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Fed.R. CIV. P. 41(b). It "also has the inherent authority to dismiss an action sua sponte, without motion by a defendant." Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997), cert. denied, 522 U.S. 875 (1997) (citing Link v. Wabash R.R.Co., 370 U.S. 626, 630-31(1962)). As the Supreme Court has recognized, this inherent authority "is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Court." Link, 370 U.S. at 629.However, as the Fifth Circuit has cautioned, this "`sanction of dismissal is the most severe sanction that a court may apply, and its use must be tempered by a careful exercise of judicial discretion.'" Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967) (quoting Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967)). Accordingly, the Fifth Circuit has held consistently "that Rule 41(b) dismissals with prejudice will be affirmed only upon a showing of a clear record of delay or contumacious conduct by the plaintiff, . . . and where lesser sanctions would not serve the best interests of justice." Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982) (quoting Pond v. Braniff Airways, Inc., 453 F.2d 347, 349 (5th Cir. 1972)) (emphasis added) (citation and internal quotations omitted). It is essential that the Court expressly consider lesser sanctions. Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985). Moreover, this "consideration, and the court's findings that lesser sanctions would be inadequate, must be spread upon the record." Id.
In addition, the Fifth Circuit's record of affirmations and reversals on the subject reveals that the sanction of dismissal "is reserved for the most egregious of cases, usually cases where the requisite factors of clear delay and ineffective lesser sanctions are bolstered by the presence of at least one . . . aggravating factor." Rogers, 669 F.2d at 320; see also Nilson v. Ikon Office Solutions, Inc., 2002 WL 742694 *3 (N.D. Tex. 2002). Such aggravating factors include: "[1] the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, [2] the degree of actual prejudice to the defendant, and [3] whether the delay was the result of intentional conduct." Id.
This case does present a clear record of delay, notwithstanding plaintiffs' arguments to the contrary. Plaintiffs took no action for three years, and the case is now six years old. However, the record does not establish the existence of any aggravating factor. The record does not reveal the extent of the plaintiffs' personal responsibility, if any. Nor does the record show-that the delay was the result of intentional conduct. The defendants argue that the delay will cause them prejudice in that the case is now stale — witnesses may be hard to locate or may have difficulty remembering relevant facts. The Court agrees that the potential for prejudice exists. However, it is impossible to predict with any certainty that such prejudice will occur. More importantly, because the Court at this juncture can only speculate as to the form that such prejudice might take, it is impossible to determine whether lesser sanctions might be adequate to remedy the prejudice.
Plaintiffs argue that all of the remaining parties should viewed as equally responsible for failing to lift the stay and re-open the case once the appeal was decided. Each of them appealed, and each joined in the motion to stay pending appeal — thus, it is unfair, plaintiffs argue, to place the burden of lifting the stay on plaintiffs alone. The Court disagrees. No defendant reasonably can be expected to prosecute a claim against himself. It was the plaintiffs whose claims were lying dormant, and it was their responsibility to prosecute those claims.
It would be reasonable to expect that in the four years following Judge Clement's rulings, a diligent plaintiff would call his attorney and inquire about the case's status. But the Court cannot know from the record that the plaintiffs did not make such a call or even several such calls.
According to plaintiffs, the delay occurred because the attorney handling the case left the firm. Thereafter, despite the fact that two other attorneys in the firm were listed as counsel of record, the case allegedly fell through the cracks. Although inexcusable, such conduct cannot be described as intentional.
Consequently, the Court is unable at this juncture to make the findings necessary to support a dismissal with prejudice. If discovery reveals facts that would make such findings possible, then the defendants may re-urge their motions at that time or, in the alternative, seek lesser sanctions.
III. CONCLUSION
Accordingly, IT IS ORDERED that Fluor Daniel's Motion to Dismiss for Failure to Prosecute and Beaird Industries' Motion to Dismiss for Failure to Prosecute are DENIED without prejudice to defendants' right to re-urge them if discovery produces proof of actual prejudice.