Carrera et al v. Allstate Vehicle and Property Insurance Company

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
BLANCA CARRERA, and
RAMON CUETO
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Plaintiffs,
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v. § Civil Action No. 1:24-cv-172
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ALLSTATE VEHICLE AND PROPERTY
INSURANCE COMPANY,
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Defendant. §
MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Before the Court is Plaintiffs Blanca Carrera and Ramon Cueto’s “Original
Petition.” Dkt. No. 1-2. For the reasons provided below, it is recommended that the Court:
1) DISMISS WITH PREJUDICE Plaintiff’s claims for failure to prosecute pursuant to
FED. R. CIV. P. 41(b); and 2) DIRECT the Clerk of Court to CLOSE this case.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs initiated this action by filing their Original Petition in County Court at
Law No. 5, in Cameron County, Texas, on October 10, 2024. Dkt. No. 1-2. On November
27, 2024, Defendant Allstate Vehicle and Property Insurance Company (“Allstate”) filed
a Notice of Removal removing this case to the Brownsville Division of the United States
District Court for the Southern District of Texas. Dkt. No. 1.
On February 28, 2025, attorneys Jason Palker and Victor Gonzalez, Jr., of the
Palker Law Firm, P.L.L.C. (Plaintiffs’ “former counsel”) filed an “Unopposed Motion to
United States District Court
Southern District of Texas
ENTERED
December 22, 2025
Nathan Ochsner, Clerk
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Withdraw” from this case. Dkt. No. 12 at 1. On April 7, 2025, Plaintiffs’ former counsel
filed an “Unopposed Amended Motion to Withdraw” (“Amended Motion to Withdraw”).
Dkt. No. 18 at 1. In their Amended Motion to Withdraw, Plaintiffs’ former counsel note
that although Plaintiffs informed them that they had sought out and obtained substitute
counsel, Plaintiffs had yet to provide any contact information. Id. On April 15, 2025, the
Court granted the Amended Motion to Withdraw. Dkt. No. 19.
To date, the Court has been unable to contact Plaintiffs or confirm that Plaintiffs
indeed obtained substitute counsel. Pursuant to the Court’s Scheduling Order dated
February 26, 2025, Plaintiffs were required to designate their expert witnesses, if any, by
June 30, 2025. Dkt. No. 11. The Court has yet to receive any such designations. On August
21, 2025, the Court ordered the parties to appear for a Status Conference on September
15, 2025, to determine whether Plaintiffs were able to retain counsel. Dkt. No. 23.
Defendants, through counsel, appeared at the Status Conference; Plaintiffs, however,
failed to appear. See Minute Entry dated September 15, 2025. On October 7, 2025, the
Court then ordered Plaintiffs to appear for a hearing on October 21, 2025, at 3:00 p.m. to
show cause as to why their claims should not be dismissed with prejudice based on their
failure to prosecute and failure to comply with the Court’s orders. Dkt. No. 29. Again,
Plaintiffs failed to comply with the Court’s order [Dkt. No. 29] and did not appear for the
show cause hearing. See Minute Entry dated October 21, 2025.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 41(b)
Federal Rule of Civil Procedure Rule 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
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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)
(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). “Lesser sanctions such as fines or dismissal without prejudice
are usually appropriate before dismissing with prejudice . . . a Rule 41(b) dismissal is
appropriate where there is a clear record of delay or contumacious conduct by the plaintiff
and when lesser sanctions would not serve the best interests of justice.” Nottingham v.
Warden, Bill Clements Unit, 837 F.3d 438, 441 (5th Cir. 2016) (internal citations
omitted). To dismiss with prejudice, one of three aggravating factors must be present: “(1)
delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to
defendant; or (3) delay caused by intentional conduct.” Berry v. CIGNA/RSI-CIGNA, 975
F.2d 1188, 1191 (5th Cir. 1992).
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III. DISCUSSION
A. Lesser sanctions
Lesser sanctions have appeared futile to encourage Plaintiffs to prosecute this case.
The Court ordered Plaintiffs to appear for a hearing to show cause [Dkt. No. 29] as to why
their claims should not be dismissed with prejudice for continuously failing to comply
with the Court’s orders and to otherwise prosecute this case. Mastronardi v. Wells Fargo
Bank, 653 Fed. App’x 356, 358 (5th Cir. 2016) (per curiam) (An order to show cause
constitutes a “lesser penalty.”). Plaintiffs did not appear for the hearing and the Court has
not received any other communications from them. See Minute Entry dated October 21,
2025.
B. Clear record of delay or contumacious conduct
To justify a dismissal with prejudice based on delay, there must be a “clear record
of delay … where there have been significant periods of total inactivity.” Berry, 975 F.2d
at 1191 n.5 (quoting Morris v. Ocean Systems, Inc., 730 F.2d 248, 252 (1984)) (cleaned
up); see also Millan v. USAA General Indem. Co., 546 F.3d 321, 327 (5th Cir. 2008). A
mere few months are insufficient. Millan, 546 F.3d at 327. In Morris, the court
determined that there was no clear record of delay when plaintiffs attended status
conferences, filed motions, and served notice of intent to proceed with depositions. 730
F.2d at 252.
Here, unlike in Morris, Plaintiffs have not made any filings or otherwise
communicated with the Court since April 7, 2025, over eight months ago. See Dkt. No. 18.
As previously stated, Plaintiffs failed to appear for two Court-ordered hearings during
that time. See Minute Entry dated September 15, 2025; see also Minute Entry dated
October 21, 2025. This goes far beyond a few several months of total inactivity.
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C. Aggravating factors
A single aggravating factor is sufficient to dismiss with prejudice. Berry, 975 F.2d
at 1191. Pro se plaintiffs are personally responsible for their failure to comply with court
orders. Nottingham, 837 F.3d at 443. Here, Plaintiffs appear to proceed pro se, so they
are responsible for the significant delays in this case. See Dkt. No. 18; see also Minute
Entry dated September 15, 2025.
Though there is no evidence of intentional conduct in the record, failure to provide
an explanation for such inaction may result in dismissal with prejudice. Mastronardi, 653
Fed. Appx. at 358 (There is “no abuse of discretion in a Rule 41(b) dismissal with prejudice
when a plaintiff provided no explanation for his inaction on a case.”). In fact, “[a]
plaintiff’s failure to give a meaningful explanation for failure to comply with a court order
… may by itself justify a dismissal.” Id. Plaintiffs have offered no explanation for their
failure to prosecute this case or their failure to abide by the Court’s orders.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that the Court: 1) DISMISS WITH
PREJUDICE Plaintiff’s claims for failure to prosecute pursuant to FED. R. CIV. P. 41(b);
and 2) DIRECT the Clerk of Court to CLOSE this case.
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
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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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