Opinion
1:22-cv-04043
09-08-2023
TEMIKA PAYTON v. STATE FARM FIRE & CASUALTY CO, ET AL
JAMES D. CAIN, JR. JUDGE
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE
This suit was filed on plaintiff's behalf by the firm McClenny Moseley & Associates, PLLC (“MMA”). Doc. 1. This was one of multiple cases filed by MMA on behalf of multiple plaintiffs leading to this court's taking steps to address what was perceived (and ultimately concluded) to be inappropriate conduct by MMA attorneys. On April 20, 2023, we issued an order to show cause why plaintiff's counsel should not be sanctioned, and that order required plaintiff to personally attend the May 12, 2023, hearing. Doc. 17. The clerk mailed notice of that hearing directly to plaintiff. The address used by the clerk for this and subsequent mailings was the address provided by MMA pursuant to the district court's February 28, 2023, order that it provide “[a] spreadsheet or similar electronic report with each client's name, docket number, and all contact information in MMA's possession for that client (including: email, telephone number, and address) . . . .” Doc. 10. Plaintiff did not appear as ordered. Doc. 20.
For a brief synopsis of the multiple cases filed in this district by MMA and the difficulties caused thereby, see Doc. 25, pp. 1-2.
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. 25. The Termination Order set a September 6, 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 plaintiff to respond by August 28, 2023, to defendants' motion for summary judgment [doc. 11], in which they assert that none of them issued a policy of insurance providing coverage as alleged in the complaint. Plaintiff did not do so. The clerk mailed the Termination Order to plaintiff, and that mailing was returned as undeliverable, marked “Return to Sender, Insufficient Address, Unable to Forward.” Doc. 26.
The court held the status conference on September 6, 2023, in Alexandria, Louisiana. Doc. 27. Plaintiff did not appear for the status conference as instructed. Id. Plaintiff has not contacted chambers regarding the case.
In the order addressed to MMA counsel ruling them to show cause why they should not be sanctioned, we had also ordered them to produce under seal detailed information about the plaintiff and their purported representation of her. Doc. 17, 19. MMA complied. Sealed doc. 22. Review of that information gives no additional insight as to the existence of Temika Payton or the property at the address given.
Short of appointing ourselves investigators to continue to pursue the existence of this plaintiff or her relationship to the property listed or both, something we decline to do, we feel we have done all in our power to notify “Temika Payton” of these proceedings. We believe we have taken every reasonable step to contact the plaintiff and determine whether there is a viable claim associated with plaintiff or the property referenced in the complaint.
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).