Opinion
No. 3-04-CV-1296-K.
July 13, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a civil action brought by Plaintiff Martina de la Torre, appearing pro se, for the return of forfeited property. On January 4, 2004, plaintiff tendered a complaint to the district clerk. However, she did not pay the statutory filing fee or seek leave to proceed in forma pauperis. On June 22, 2004, a deficiency notice was mailed to plaintiff at her address. One week later, the unopened envelope was returned to the district clerk with the notation that plaintiffs forwarding address had expired. The court now determines that this case should be dismissed without prejudice under Rule 41(b) of the Federal Rules of Civil Procedure.
Plaintiff originally brought this action as a motion for return of forfeited property in her underlying criminal case. United States v. de la Torre, No. 3-97-CR-158-P. Because the motion was filed after the conclusion of the criminal proceedings against plaintiff, the court construed the motion as a new civil action under 28 U.S.C. § 1331. See Clymore v. United States, 217 F.3d 370, 373 (5th Cir. 2000).
Plaintiff's motion does not contain an address or a telephone number as required by Fed.R.Civ.P. 11(a). However, the motion was mailed to the district clerk in an envelope that listed a return address of 329 Cedar Lane, Wilmer, Texas 75172.
II.
A district court has authority to dismiss a case for want of prosecution or failure to comply with a court order. FED.R.CIV.P.41(b); Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). This authority "flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases." Boudwin v. Graystone Insurance Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985), citing Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Such a dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996). A dismissal with prejudice is appropriate only if the failure to comply with the court order was the result of purposeful delay or contumacious conduct and the imposition of lesser sanctions would be futile. Id.; see also Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
Plaintiff has failed to notify the court of her current address. Without this information, the court cannot communicate with plaintiff and this litigation cannot proceed. Dismissal is the only option available under the circumstances.
RECOMMENDATION
Plaintiff's complaint should be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.