Beddoe v. Maury Cobb Attorney at Law LLC

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KWAIN BEDDOE, §
§
Plaintiff, §
§
V. § No. 3:25-cv-2089-N-BN
§
MAURY COBB ATTORNEY AT LAW §
LLC, §
§
Defendant. §
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Plaintiff Kwain Beddoe filed a pro se complaint alleging claims under the Fair
Debt Collection Practices Act. See Dkt. No. 3. And Senior United States District Judge
David C. Godbey referred Beddoe’s lawsuit to the undersigned United States
magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing
order of reference.
Beddoe paid the filing fee. So, through an order entered on August 8, 2025, the
Court notified Beddoe that,
by doing so, he undertook the obligation to (1) properly serve the
defendant with a summons and the complaint in compliance with
Federal Rule of Civil Procedure 4 or (2) obtain a waiver of service from
defendant. See FED. R. CIV. P. 4(h) (setting forth procedures for serving
corporations, partnerships, or associations); see also FED. R. CIV. P. 4(d)
(procedures for requesting waiver of service).
And Beddoe must file with the Court, as applicable, a proof of service in
accordance with Rule 4(l) or an executed waiver of service.
The Court further advises Beddoe that, if proper service is not made and
shown to the Court through filed proofs of service (or a waiver of service
obtained and filed with the Court) before the 90th day after his filing of
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this action (on August 6, 2025) that is not a Saturday, Sunday, or legal
holiday – which will be Tuesday, November 4, 2025 – this case is
subject to dismissal without prejudice unless Beddoe shows both
(1) good cause for this failure and (2) good cause for the Court to extend
the time for service for an appropriate, specified period. See FED. R. CIV.
P. 4(m); see also FED. R. CIV. P. 41(b) (providing for dismissal, with or
without prejudice, for failure to prosecute and obey court orders).
Dkt. No. 5.
Presumably in response to this order and in recognition of his obligation to
properly effect service, Beddoe submitted a return of service on September 5, 2025,
indicating that a third party had delivered the complaint and civil cover sheet to an
individual at the front desk for Defendant on August 13, 2025. See Dkt. No. 6. If
Defendant was properly served on that date, its deadline to respond to the complaint
was September 3, 2025. See FED. R. CIV. P. 12(a)(1)(A)(i).
But more than 90 days later, Defendant had not responded to the complaint.
So the Court entered a second order warning Beddoe that,
under the Court’s local rules, “[i]f a defendant has been in default for 90
days, the presiding judge may require the plaintiff to move for entry of
a default and a default judgment. If the plaintiff fails to do so within the
prescribed time, the presiding judge will dismiss the action, without
prejudice, as to that defendant.” N.D. TEX. L. CIV. R. 55.1.
Because the return of service indicates that Defendant’s deadline to
respond was more than 90 days ago, Beddoe must move for entry of
default and a default judgment by February 6, 2026, or the
undersigned will recommend that the Court dismiss Beddoe’s claims
against Defendant without prejudice.
Alternatively, if Beddoe believes that Defendant has not been properly
served, he must file a motion for extension of time under Rule 4(m) by
February 6, 2026. And the failure to do so will result in a
recommendation that the Court dismiss Beddoe’s claims against
Defendant without prejudice. See FED. R. CIV. P. 4(m); see also FED. R.
CIV. P. 41(b) (providing for dismissal, with or without prejudice, for
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failure to prosecute and obey court orders).
Dkt. No. 7.
Beddoe’s deadline to move for entry of default and a default judgment has now
passed. And it is now more than three months past the deadline set by Rule 4(m) and
more than five months past the deadline for Defendant to respond to the complaint if
it was properly served. But Defendant has not appeared or responded and Beddoe
has not moved for entry of default and a default judgment or moved for an extension
of time under Rule 4(m). And, so, considering this record, the undersigned enters
these findings of fact, conclusions of law, and recommendation that the Court should
dismiss this lawsuit without prejudice under Federal Rule of Civil Procedure 41(b)
and Local Civil Rule 55.1.
Discussion
Rule 41(b) “authorizes the district court to dismiss an action sua sponte for
failure to prosecute or comply with [a Federal Rule of Civil Procedure or] a court
order.” Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (citing
McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (per curiam)); accord
Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 440 (5th Cir. 2016) (failure
to comply with a court order); Rosin v. Thaler, 450 F. App’x 383, 383-84 (5th Cir.
2011) (per curiam) (failure to prosecute); see also Campbell v. Wilkinson, 988 F.3d
798, 800-01 (5th Cir. 2021) (holding that the text of Rule 41(b) does not extend to a
failure to comply with a court’s local rule insofar as that violation does not also qualify
as a failure to prosecute (discussing Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188 (5th
Cir. 1992))).
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This authority “flows from the court’s inherent power to control its docket and
prevent undue delays in the disposition of pending cases.” Boudwin v. Graystone Ins.
Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S.
626 (1962)); see also Lopez v. Ark. Cnty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir.
1978) (“Although [Rule 41(b)] is phrased in terms of dismissal on the motion of the
defendant, it is clear that the power is inherent in the court and may be exercised sua
sponte whenever necessary to ‘achieve the orderly and expeditious disposition of
cases.’” (quoting Link, 370 U.S. at 631)); Campbell, 988 F.3d at 800 (“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.” (citing Morris v. Ocean Sys., Inc., 730 F.2d 248,
251 (5th Cir. 1984) (citing, in turn, Link, 370 U.S. at 631))).
And the Court’s authority under Rule 41(b) is not diluted by a party proceeding
pro se, as “[t]he right of self-representation does not exempt a party from compliance
with relevant rules of procedural and substantive law.” Wright v. LBA Hospitality,
754 F. App’x 298, 300 (5th Cir. 2019) (per curiam) (quoting Hulsey v. Texas, 929 F.2d
168, 171 (5th Cir. 1991) (quoting, in turn, Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.
Nov. 1981))).
A Rule 41(b) dismissal may be with or without prejudice. See Long v. Simmons,
77 F.3d 878, 879-80 (5th Cir. 1996).
Although “[l]esser 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, 837 F.3d at 441 (quoting Bryson v. United States, 553 F.3d 402, 403 (5th
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Cir. 2008) (per curiam) (in turn quoting Callip v. Harris Cnty. Child Welfare Dep’t,
757 F.2d 1513, 1521 (5th Cir. 1985))); see also Long, 77 F.3d at 880 (a dismissal with
prejudice is appropriate only if the failure to comply with the court order was the
result of purposeful delay or contumacious conduct and the imposition of lesser
sanctions would be futile); cf. Nottingham, 837 F.3d at 442 (noting that “lesser
sanctions” may “‘include assessments of fines, costs, or damages against the plaintiff,
conditional dismissal, dismissal without prejudice, and explicit warnings’” (quoting
Thrasher v. City of Amarillo, 709 F.3d 509, 514 (5th Cir. 2013))).
“When a dismissal is without prejudice but ‘the applicable statute of
limitations probably bars future litigation,’” that dismissal operates as – i.e., it is
reviewed as – “a dismissal with prejudice.” Griggs, 905 F.3d at 844 (quoting
Nottingham, 837 F.3d at 441); see, e.g., Wright, 754 F. App’x at 300 (affirming
dismissal under Rule 41(b) – potentially effectively with prejudice – where “[t]he
district court had warned Wright of the consequences and ‘allowed [her] a second
chance at obtaining service’” but she “disregarded that clear and reasonable order”).
By not complying with the Court’s order to move for entry of default and a
default judgment, Beddoe has prevented this action from proceeding and has thus
failed to prosecute this lawsuit. And Beddoe has been warned that failure to so move
within the prescribed time will result in dismissal of the action without prejudice
under Local Civil Rule 55.1. See Dkt. No. 7.
Dismissal of this lawsuit without prejudice under Rule 41(b) and Local Civil
Rule 55.1 is therefore warranted under these circumstances.
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Because the undersigned concludes that lesser sanctions would be futile, as the
Court is not required to delay the disposition of this case until such time as Beddoe
decides to obey the Court’s order and prosecute this lawsuit, the Court should exercise
its inherent power to prevent undue delays in the disposition of pending cases and
sua sponte dismiss this action without prejudice under Rule 41(b) and Local Civil
Rule 55.1.
Insofar as this dismissal may prejudice Beddoe, these findings, conclusions,
and recommendation afford notice, and the opportunity to file objections (further
explained below) affords an opportunity to respond, to explain why this case should
not be dismissed for the reasons set out above. Cf. Carver v. Atwood, 18 F.4th 494,
498 (5th Cir. 2021) (“The broad rule is that ‘a district court may dismiss a claim on
its own motion as long as the procedure employed is fair.’ More specifically, ‘fairness
in this context requires both notice of the court’s intention and an opportunity to
respond’ before dismissing sua sponte with prejudice.” (citations omitted)).
Recommendation
The Court should dismiss this action without prejudice under Federal Rule of
Civil Procedure 41(b) and Local Civil Rule 55.1.
A copy of these findings, conclusions, and recommendation shall be served on
all parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections
within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.
P. 72(b). In order to be specific, an objection must identify the specific finding or
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recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s findings, conclusions, and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure
to file specific written objections will bar the aggrieved party from appealing the
factual findings and legal conclusions of the magistrate judge that are accepted or
adopted by the district court, except upon grounds of plain error. See Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: February 12, 2026
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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