1:24-cv-00172•Carrera et al v. Allstate Vehicle and Property Insurance Company
Carrera et al v. Allstate Vehicle and Property Insurance Company
1:24-cv-00172Txsd22 déc. 2025
Texte intégral
1/6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION BLANCA CARRERA, and RAMON CUETO § § Plaintiffs, § § § v. § Civil Action No. 1:24-cv-172 § ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY, § § § 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 Case 1:24-cv-00172 Document 32 Filed 12/22/25 in TXSD Page 1 of 6
2/6 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 Case 1:24-cv-00172 Document 32 Filed 12/22/25 in TXSD Page 2 of 6
3/6 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). Case 1:24-cv-00172 Document 32 Filed 12/22/25 in TXSD Page 3 of 6
4/6 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. Case 1:24-cv-00172 Document 32 Filed 12/22/25 in TXSD Page 4 of 6
5/6 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 Case 1:24-cv-00172 Document 32 Filed 12/22/25 in TXSD Page 5 of 6
6/6 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 Case 1:24-cv-00172 Document 32 Filed 12/22/25 in TXSD Page 6 of 6
Vous vous demandez comment ce texte s’applique à votre situation ?
Consultation gratuite, sans engagement
Décrivez votre situation. Notre équipe vous recontactera par e-mail pour votre consultation.
Poursuivez vos recherches dans ChatGPT ou Claude
Connectez Omnilex pour rechercher dans le corpus juridique depuis votre assistant IA.