Ratcliff v. Ekre of TX, LLC

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Case 4:25-cv-02280 Document 39 Filed 11/25/25in TXSD Page1lof4
United States District Court

Southem District of Texas

ENTERED
UNITED STATES DISTRICT COURT November 26, 2025
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

Bria Ratcliff, as Power of
Attorney for Frances St. Amand,
Plaintiff,

Civil Action H-25-2280
Vv.

EKRE of TX, LLC,
Defendant.

COR GO? 000 00D CGF> LO? 602 CO)

MEMORANDUM AND RECOMMENDATION

This case has been referred to the undersigned magistrate
judge for full pretrial management under 28 U.S.C. § 636(b)(1)(A) ©
and (B). ECF No, 17. The court sua sponte recommends this case
be DISMISSED for failure to prosecute.

1. Background and Procedural Posture

On May 22, 2024, Bria Ratcliff, purporting to act as attorney-
in-fact for her grandmother, Frances St. Amand (Plaintiff), filed
this lawsuit against Defendant EKRE of TX, LLC in state district
court. HCF No. 1-5. Plaintiff alleged that Defendant “stole away
Plaintiffs real property with consideration that falls egregiously
short of just and fair compensation.” Id. at 5. She sought recission
of the conveyance of the real property, return of that property in
fee simple absolute, and a declaration that documents “alleged to
have been signed and executed by Plaintiff or anyone allegedly
acting on her behaif... [are] null and void... .” Id. at 2, 5.

On June 28, 2024, Defendant removed the case to federal
court under 28 U.S.C. § 1881. See St. Amand v. EKRE of TX, LLC,
No, 4:24-cv-2440 (S.D. Tex. Sept. 9. 2024) (Def.’s Notice of
Removal, ECF No. 1 at 1). The case was remanded because “no

reasonable construction of Plaintiffs petition ... raisefd| a federal

Case 4:25-cv-02280 Document 39 Filed 11/25/25in TXSD Page 2 of 4

question.” St. Amand, No. 4:24-cv-2440 (Mem. Op. & Order,
ECF No. 16 at 5-6). Still acting on behalf of her grandmother,
Ratcliff filed an Amended Petition in state court on May 16, 20265.
ECF No. 1-11 at 2. The Amended Petition included a statement of
a monetary demand over $75,000. ECF No. 1-11 at 3. Based on the
Amended Petition, Defendant removed the case to federal court for
a second time. ECF No. 1. Defendant asserted that the court had
diversity jurisdiction under 28 U.S.C. § 1332(a). Id.

On October 21, 2025, the court issued a Memorandum and
Recommendation and Order denying Plaintiff's Motion for Leave
to File First Amended Petition, granting Plaintiff's Motion for
Leave to File Motion to Remand, and recommending denial of
Plaintiff's Motion to Remand. ECF No. 35. Relevant here, the court
also explained that Ratcliff, who is not a licensed attorney, lacks
the authority to represent her grandmother in court and stated,
“As it stands, Frances St. Amand is the sole plaintiff in this
lawsuit.” Id. at 5. The court’s issued a separate order for Plaintiff
St. Amand to either “(1) file notice to the court stating that she will
represent herself in this action pro se, or (2) hire an attorney, who
shall file a notice of appearance on her behalf,” and to inform the
court of her decision by November 20, 2025. ECF No. 386, The court
warned that failure to comply with the order would “result in a
recommendation that the case be dismissed for want of
prosecution.” Id. The order was docketed on the court's CM/ECF
system. The Clerk’s Office mailed a hard copy of the order via
first-class mail to the physical address provided when Plaintiff
filed this lawsuit. See ECF Nos. 1-5, 1-11, 36. Plaintiff did not
comply with the order.

2, Legal Standards

Federal Rule of Civil Procedure 41(b) permits involuntary

dismissal of an action when “the plaintiff fails to prosecute or to

Case 4:25-cv-02280 Document 39 Filed 11/25/25in TXSD Page 3of4

comply with these rules or a court order[,]” “It is well established
that Rule 41(b) permits dismissal not only on motion of the
defendant, but also on the court’s own motion.” Campbell v.
Wilkinson, 988 F.3d 798, 800 (5th Cir. 2021) (clarifying that the
court’s power to dismiss does not extend to failure to comply with
a loeal rule). The court’s decision to dismiss under Rule 41(b) may
only be reviewed for abuse of discretion. /d. at 801.

Rule 41(b) dismissal with prejudice is “a severe sanction”
that requires (1) “a clear record of delay or contumacious conduct
by the plaintiff[;]” and (2) an express finding that “lesser sanctions
would not prompt diligent prosecution, or the record shows that
the district court employed lesser sanctions that proved to be
futile.” Campbell, 988 F.3d at 801-02 (quoting Berry ov.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992)). In most
cases, the Fifth Circuit also requires proof of at least one of the
following aggravating factors: (1) the delay was caused by the
plaintiff and not the plaintiffs attorney; (2) the defendant was
prejudiced by the delay; or (3) the delay can be characterized as
intentional. fd. at 802 (quoting Berry, 975 F.2d at 1191).

& Analysis

A, Clear Record of Delay

Plaintiff is appearing pro se, so she is responsible for all
efforts to prosecute this case. Plaintiff has not taken any action in
this case. All motions have been filed by Ratcliff, purporting to act
on behalf of Plaintiff. Additionally, Plaintiff did not respond to the
court’s order to file a notice of appearance by November 20, 2026.
Neither Plaintiff nor Ratcliff has contacted the court to provide an

updated mailing address. These facts show a clear record of delay.
B. Futility of Lesser Sanctions

The court warned Plaintiff that dismissal would result if she

failed to respond to the court’s order. Given the nature of this case,

Case 4:25-cv-02280 Document 39 Filed 11/25/25in TXSD Page 4of4

and the fact that Plaintiff is appearing pro se, it is not likely that
a monetary sanction would provoke any action. There appears to
be nothing the court can do to get the Plaintiffs attention on this
case, There are no other steps the court can take that will prompt
Plaintiff to participate. Lesser sanctions would be futile,
C. Aggravating Factors

Plaintiff does not have a lawyer, so any delay can only be
attributed to her. The delay in this case can only be characterized
as intentional. Plaintiff failed to respond to the court’s order and
has made no attempt to communicate with the court or opposing
counsel. Additionally, Ratcliff, who is not an attorney, but who has
been seeking to act on behalf of Plaintiff, has made no attempt to
communicate with the court since August 25, 2025,

4, Conclusion

For the foregoing reasons, the court recommends that this
case be DISMISSED with PREJUDICE for failure to prosecute.

The parties have fourteen days from service of this
Memorandum and Recommendation to file written objections. 28
U.S.C. § 6386(b)(1); Fed. R. Civ. P. 72. Failure to timely file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147-49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276—77 (5th
Cir, 1988).

Signed at Houston, Texas on November 25, 2025.

Peter Bray
United States Magistrate Judge