Robinson et al v. Cadence Bank

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Robert Robinson,
Nyesha S. Moore,
Plaintiffs,
v.
Cadence Bank,
Defendant.
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Civil Action H-26-0919
MEMORANDUM AND RECOMMENDATION
TO DISMISS FOR FAILURE TO PROSECUTE
This case has been referred to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 4. The court
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
May 14, 2026. ECF No. 3. As shown in the attached Notice Report
from the clerk’s office, notice of the hearing was mailed to the
physical address that each Plaintiff gave when the lawsuit was
filed. See Court’s Exhibit 1. Plaintiffs did not appear at the initial
conference. See Docket Entry dated 05/14/2026.
The court then set a hearing for the Plaintiffs to appear and
show cause why their case should not be dismissed for want of
prosecution. ECF No. 5. The order included a warning: “Failure
to appear will result in a recommendation that this case be
dismissed with prejudice for failure to prosecute.” Id.
(emphasis in original). The order was docketed on the court’s
CM/ECF system and mailed to the address listed for each Plaintiff.
The hearing was held, and the Plaintiffs failed to appear.
United States District Court
Southern District of Texas
ENTERED
June 08, 2026
Nathan Ochsner, Clerk
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2. Legal Standard and Analysis
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 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
be reviewed only 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)). The
Fifth Circuit generally 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.
3. Analysis
A. Clear Record of Delay
Plaintiffs are appearing pro se, so they are responsible for all
efforts to prosecute this case. Plaintiffs have failed to appear at two
separate court settings. Other than initiating this lawsuit in
February 2026, Plaintiffs have done nothing on the case. Plaintiffs
have not contacted the court to provide an updated address. The
Notice Report shows that the original order setting the initial
conference and the show cause order were both sent to the
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Plaintiffs’ 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 Plaintiffs
that dismissal would result if they missed the final hearing. There
appears to be nothing the court can do to get the Plaintiffs’
attention on this case. There are no other steps the court can take
that will prompt Plaintiffs to participate. Lesser sanctions would
be futile.
C. Aggravating Factors
Plaintiffs do not have a lawyer, so any delay can be
attributed solely to them. The delay in this case can only be
characterized as intentional. Plaintiffs have failed to appear for
two court-ordered hearings and have made no attempt to
communicate with the court or opposing counsel.
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
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 June 8, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
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