Mosby v. Musk et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
KIMBERLY JO MOSBY, §
Plaintiff,
§
§
§
v. § Civil Action No. 1:25-cv-220
§
ELON MUSK, et al., §
§
Defendants. §
MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Before the Court is Plaintiff Kimberly Jo Mosby’s pro se “Complaint for Violation
of Civil Rights” (“Complaint”). Dkt. No. 1. For the reasons provided below, it is
recommended that the Court: (1) DISMISS WITHOUT PREJUDICE Mosby’s
Complaint; and (2) DIRECT the Clerk of Court to CLOSE this case.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mosby initiated this civil action by filing her Complaint on September 29, 2025.
Dkt. No. 1. On October 7, 2025, the Clerk’s Office notified Mosby that she had yet to pay
the filing fee. Dkt. No. 8. On October 24, 2025, the Court issued a Notice and Order,
noting that Mosby’s Complaint leaves “crucial questions concerning the Court’s
jurisdiction and nature of the complaint unanswered.” Dkt. No. 10 at 1; See generally Dkt.
No. 1. Specifically, the “Basis for Jurisdiction” sections of Mosby’s Complaint and Civil
Cover Sheet are blank. Dkt. No. 1 at 3–4. Although the Civil Cover Sheet lists “470
United States District Court
Southern District of Texas
ENTERED
December 22, 2025
Nathan Ochsner, Clerk
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Racketeer Influence and Corrupt Organizations” under the “Cause of Action” section, no
statute is cited. Dkt. No. 1-1.
In its Notice and Order, the Court ordered Mosby to file an amended complaint
that complies with the Federal Rules of Civil Procedure by November 14, 2025. Dkt. No.
10 at 2. The Court notified Mosby that failure to file an amended complaint, and failure
to pay the filing fee or file an application to proceed in forma pauperis, could result in
dismissal. Id. Mosby did not file an amended complaint by the deadline. And Mosby has
yet to pay the required filing fee. Although Mosby indicates in her Complaint that she
would like to proceed in forma pauperis [Dkt. No. 1 at 5], she has yet to file the appropriate
application.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 41(b)
Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”) provides for dismissal for
failure to prosecute and comply with a court’s orders. “If the plaintiff fails to prosecute or
to comply with these rules or a court order, a defendant may move to dismiss the action
or any claim against it. Unless the dismissal order states otherwise, a dismissal under this
subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction,
improper venue, or failure to join a party under Rule 19—operates as an adjudication on
the merits.” FED. R. CIV. P. 41(b). See Rossmann v. Pompeo, No. 3:17-CV-2975-L-BH, 2017
WL 6559152 (N.D. Tex. Nov. 20, 2017), adopted by, 2017 WL 6558159 (N.D. Tex. Dec.
22, 2017) (recommending dismissal for failure to prosecute after plaintiff failed to submit
application in forma pauperis in compliance with a court order); Raker v. City of Corpus
Christi Police Dept., No. MC-08-22, 2008 WL 3317006, at *2 (S.D. Tex. Aug. 7, 2008)
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(dismissing a plaintiff's action for failure to prosecute after plaintiff failed to submit an
amended complaint in compliance with a court order). “District courts may, for
appropriate reasons, dismiss cases sua sponte. For example, sua sponte dismissal is
appropriate when a plaintiff fails to prosecute her case.” Carver v. Atwood, 18 F.4th 494
(5th Cir. 2021) (internal citation omitted). A Rule 41(b) dismissal may be with or without
prejudice. Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996).
III. DISCUSSION
Mosby has failed to prosecute this case and to comply with the Court’s October 24,
2024, Notice and Order. Despite her November 14, 2025, deadline [Dkt. No. 10 at 2],
Mosby has yet to amend her Complaint. Though she has received multiple warnings by
the Court [See Dkt. Nos. 8, 10], Mosby has yet to either pay the required filing fee or file
an application to proceed in forma pauperis. Critically, the Court has not received any
communications from Mosby since she filed her Complaint on September 29, 2025. Given
Mosby’s lack of contact or filings with the Court, her failure to abide by the Court’s Notice
and Order, and her failure to either pay the filing fee or file an application to proceed in
forma pauperis, this action should be dismissed for failure to prosecute pursuant to FED.
R. CIV. P. 41(b).
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that the Court: 1) DISMISS
WITHOUT PREJUDICE Mosby’s Complaint [Dkt. No. 1] for failure to prosecute
pursuant to FED. R. CIV. P. 41(b); and 2) DIRECT the Clerk of Court to CLOSE this case.
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V. NOTICE TO PARTIES
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within fourteen
days after being served with a copy shall bar that party, except upon grounds of plain
error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the district court, provided that the party has been served with
notice that such consequences will result from a failure to object. Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1);
FED. R. CIV. P. 72(b).
SIGNED on this 22nd day of December, 2025, at Brownsville, Texas.
____________________________________
Ignacio Torteya, III
United States Magistrate Judge
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