Haynie et al v. ASI Lloyds

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HERSCHEL A. HAYNIE, ET AL.,
Plaintiffs,
v.
ASI LLOYDS,
Defendant.
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Case No. 4:25-cv-5863
JUDGE PALERMO’S
REPORT AND RECOMMENDATION
Because Plaintiffs have failed to take action to prosecute this case, the Court
recommends their claims be dismissed for failure to prosecute.1
This case was set for an initial conference to be held on June 12, 2026. ECF No. 11.
Plaintiffs did not appear. Defendant filed a motion, stating that after Plaintiffs’ counsel
withdrew,2 Plaintiffs have failed to communicate with opposing counsel, ignoring emails
and mailed correspondence3 asking Plaintiffs to participate in a Rule 26(f) conference and
attend the Court’s initial conference. The Court set a hearing via Zoom for July 1, 2026,
for the Plaintiffs to appear and show cause why this case should not be dismissed for want
of prosecution. Order, ECF No. 19. The Court’s order specifically stated “Failure to appear
will result in a recommendation that this case be dismissed with prejudice for failure to
1 The district judge to whom this case is assigned referred Defendant’s motion, ECF No. 17,
seeking a show cause hearing, Order, ECF Nos. 18.
2 Plaintiffs’ counsel filed an unopposed motion to withdraw on April 27, 2026. ECF No. 12.
Plaintiffs’ counsel informed them of the Court’s June 12, 2026 scheduling conference at that time.
Id.
3 Neither the email nor mailed correspondence were returned as undeliverable.
United States District Court
Southern District of Texas
ENTERED
July 01, 2026
Nathan Ochsner, Clerk
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prosecute.” Id. Notice of the show cause hearing date was entered on the Court’s docket,
id., and the Court’s Case Manager emailed the Zoom link to Plaintiffs. Plaintiffs did not
appear at the show cause hearing or contact the Court to explain the reason they could not
attend. At the hearing, Defendant’s counsel confirmed that Plaintiffs have never responded
to her emails or mail.
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[.]” Allen
v. First Premier Bank, No. CV H-24-3701, 2025 WL 1747021, at *1 (S.D. Tex. Apr. 24,
2025), adopted, No. CV H-24-3701, 2025 WL 1745132 (S.D. Tex. June 23, 2025). “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.” Id. (quoting 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. (quoting Campbell, 988 F.3d 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.” Id. (quoting 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
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defendant was prejudiced by the delay; or (3) the delay can be characterized as intentional.
Id. (quoting Campbell, 988 F.3d at 802 (quoting Berry, 975 F.2d at 1191)).
Plaintiffs are pro se, so they are responsible for all efforts to prosecute this case.
Plaintiffs have failed to appear at two separate court settings. Since their counsel withdrew,
Plaintiffs have done nothing on the case. Plaintiffs did not participate in preparation of the
joint discovery and case management plan. ECF No. 17. Plaintiffs did not contact the Court
or respond to the emails the Court’s Case Manager sent providing Zoom links for the
hearings. These facts show a clear record of delay. See Allen, 2025 WL 1747021, at *2;
Emmons v. Gaimin AG, No. 4:25-CV-00824, 2025 WL 2461659, at *1–2 (S.D. Tex. Aug.
5, 2025), adopted, No. 4:25-CV-0824, 2025 WL 2461889 (S.D. Tex. Aug. 26, 2025);
Romero v. Edlow, No. CV H-25-3829, 2025 WL 4059443, at *1–2 (S.D. Tex. Dec. 24,
2025), adopted sub nom. Marban Romero v. Edlow, No. 4:25-CV-3829, 2026 WL 129300
(S.D. Tex. Jan. 16, 2026).
The Court unsuccessfully admonished Plaintiff, a lesser sanction. The Court set the
show cause hearing and warned Plaintiff that dismissal would result if they missed the
hearing. The Court is not convinced that monetary sanctions would have any effect,
considering Plaintiffs’ pro se status. See Lancon, 2019 WL 1046951, at *3. In sum, the
Court finds that sanctions other than dismissal would be pointless. It appears that Plaintiffs
have abandoned this suit. See Allen, 2025 WL 1747021, at *2; Emmons, 2025 WL
2461659, at *1–2; Romero, 2025 WL 4059443, at *1–2.
For 	the 	foregoing 	reasons, 	the 	Court 	RECOMMENDS 	that 	this 	case 	be
DISMISSED without PREJUDICE for failure to prosecute.
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The 	Parties 	have 	fourteen 	days 	from 	service 	of 	this 	Report 	and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1)(C); F ED . R. C IV . P.
72(b). Failure to file timely objections will preclude review of factual findings or legal
conclusions, except for plain error. Quinn v. Guerrero, 863 F.3d 353, 358 (5th Cir.
2017).
IT IS SO ORDERED.
Signed at Houston, Texas, on July 1, 2026.
______________________________
Dena Hanovice Palermo
United States Magistrate Judge
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