Howard v. Experian Information Services, LLC

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Stephen Howard,
Plaintiff,
v.
Experian Information Services,
LLC,
Defendant.
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Civil Action H-25-3875
MEMORANDUM AND RECOMMENDATION
This case has been referred to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 3 The court sua
sponte recommends this case be DISMISSED with prejudice for
failure to prosecute.
1. Background
This case was set for an initial conference to be held on
November 13, 2025. ECF No. 3. Notice was mailed to the physical
address that Plaintiff gave when he filed this lawsuit. Plaintiff did
not appear at the initial conference. 	See 	Docket Entry dated
11/13/2025. The court set a hearing for the Plaintiff to appear and
show cause why his case should not be dismissed for want of
prosecution. The order included a warning: “Failure to appear
will result in a recommendation that this case be dismissed
for want of prosecution.” See ECF No. 8 (emphasis in original).
The order was docketed on the court’s CM/ECF system.
Prior to the Show Cause hearing, Plaintiff submitted an
Amended Complaint and filed a Response to the Defendant’s
Motion to Dismiss. ECF Nos. 10 and 11. Plaintiff appeared at the
Show Cause Hearing held on December 17, 2025, and showed
cause for his failure to appear at prior hearings. ECF No. 14.
United States District Court
Southern District of Texas
ENTERED
February 10, 2026
Nathan Ochsner, Clerk
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Plaintiff also informed the court that he had obtained a lawyer to
represent him in this case. Id. The initial conference was reset for
January 29, 2026, to allow time for new counsel to participate in
formulating the joint case management plan. ECF No. 14. No
lawyer has appeared on Plaintiff’s behalf.
Plaintiff again failed to appear at the January 29, 2026
hearing. See Docket Entry dated 1/29/2026. Notice of the January
29, 2026 hearing was mailed to the physical address that Plaintiff
gave when he filed this lawsuit.
The court again set a hearing for the Plaintiff to appear on
February 6, 2026, and show cause why his case should not be
dismissed for want of prosecution. ECF No. 19. The order stated
that “Failure to appear will result in a recommendation that
this case be dismissed for want of prosecution.” Id. (emphasis
in original). The order was docketed on the court’s CM/ECF system
and notice of the February 6 hearing was mailed to Plaintiff’s
address. The court’s case manager also called Plaintiff on the
morning of the hearing and left a message informing Plaintiff of
the hearing’s date, time, and place. Plaintiff again failed to appear.
Plaintiff has now failed to appear at three separate hearings before
the undersigned.
The court also notes that on January 2, 2026, Defendant
filed another Motion to Dismiss. ECF No. 16. Plaintiff has not filed
a response to that motion, which has now been pending for over a
month. According to the Discovery/Case Management Plan, ECF
No. 17, Plaintiff also did not participate in formulating the plan
and failed to respond to defense counsel’s emails.
2. Legal Standard and Analysis
Rule 	Federal 	Rule 	of 	Civil 	Procedure 	41(b) 	permits
involuntary dismissal of an action when “the plaintiff fails to
prosecute or to comply with these rules or a court order[.]” “It is
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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 local rule). The court’s decision to dismiss
under Rule 41(b) may only be reviewed for abuse of discretion. Id.
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 	v.
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 plaintiff’s attorney; (2) the defendant was
prejudiced by the delay; or (3) the delay can be characterized as
intentional. Id. at 802 (quoting Berry, 975 F.2d at 1191).
3. Analysis
A. Clear Record of Delay
Plaintiff is appearing pro se, so he is responsible for all
efforts to prosecute this case. Plaintiff has failed to appear at three
separate court settings. The plaintiff did appear at the first show
cause 	hearing 	on 	December 	17, 	2026, 	but 	appears 	to 	have
abandoned the case since then. He knows how to communicate
with the court and appears to be receiving the entries on the court’s
docket. Plaintiff has not contacted the court to provide an updated
address. A copy of the noticing report from the clerk’s office shows
that the order setting the most recent show cause order was sent
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to the Plaintiff’s mailing address. See Court’s Exhibit 1. These
facts show a clear record of delay.
B. Futility of Lesser Sanctions
The court set a show cause hearing and warned Plaintiff that
dismissal 	would 	result 	if 	he 	missed 	the 	final 	hearing. 	There
appears to be nothing the court can do to get the Plaintiff’s
attention on this case. Given his pro se status, financial sanctions
would likely be futile. Warnings are 	all the court has 	at its
disposal, 	but 	Plaintiff 	appears 	to 	have 	ignored 	the 	court’s
warnings. 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 him. The delay in this case can only be characterized
as intentional. Plaintiff has failed to appear for two court-ordered
hearings since the first show cause hearings. Plaintiff has made no
attempt to communicate with the court as to why he missed the
latest show cause hearing.
4. Conclusion
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. 	§ 636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72. 	Failure 	to 	timely 	file
objections will preclude appellate review of factual findings or legal
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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 February 6, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
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