Nguyen v. Mr. Giac

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
TRANG VAN NGUYEN,
Plaintiff.
V.
MR. GIAC,
Defendant.
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CIVIL ACTION NO. 3:25-cv-00005
MEMORANDUM AND RECOMMENDATION
This case has been on file since January 13, 2025. See Dkt. 1. Since filing this
case, Plaintiff has failed to comply with his discovery obligations. Defendant
brought Plaintiff’s failure to participate in the discovery process to my attention in
a November 4, 2025 discovery letter. See Dkt. 20. On November 7, 2025, I held an
oral hearing to address this issue. At that hearing, I “ordered that full and complete
discovery responses and documents be produced by Plaintiff no later than
11/26/2025.” Dkt. 23. I warned, in no uncertain terms: “Failure to follow this
order will result in severe sanctions.” Id. (emphasis added).
Plaintiff 	did 	not 	comply 	with 	my 	order. 	No 	discovery 	responses 	or
documents have been produced. On November 26, 2025, Plaintiff’s counsel
informed me that he “has made attempts to reach Plaintiff for months, since
August 2025,” but “has been unable to reach Plaintiff to discuss this case and the
outstanding discovery matters.” Dkt. 24 at 1. After reading Plaintiff’s counsel’s
statement, I issued an order requiring Plaintiff to attend a January 23, 2026 oral
hearing on Zoom. In that order, I stated:
PLAINTIFF’S FAILURE TO APPEAR TO THE JANUARY 23,
2026 	HEARING—OR 	TO COMMUNICATE 	WITH 	THE
COURT 	IN 	ADVANCE 	OF 	THE 	HEARING 	IF
PLAINTIFF NEEDS TO RESCHEDULE—WILL RESULT IN
United States District Court
Southern District of Texas
ENTERED
January 27, 2026
Nathan Ochsner, Clerk
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DISMISSAL OF THIS CASE WITH PREJUDICE FOR WANT
OF PROSECUTION.
Dkt. 30 at 2.
To ensure Plaintiff appeared at the January 23, 2026 hearing, I ordered
Plaintiff’s counsel to mail a copy of my order setting the hearing to Plaintiff’s last
known address by United States Postal Service first-class mail and certified mail
with return receipt requested. See id. at 3. I also ordered Plaintiff’s counsel to
email, call, text, and use any other form of communication that Plaintiff’s counsel
has for Plaintiff to communicate the importance of Plaintiff’s attendance at the
January 23, 2026 hearing. See id. The Court Clerk also mailed a copy of my order
to Plaintiff at the last known address provided by Plaintiff’s counsel.
Despite these efforts, Plaintiff did not appear at the January 23, 2026
hearing. At that hearing, Plaintiff’s counsel confirmed that he had reached out to
Plaintiff on numerous occasions through various means but had not received a
response in more than six months.1 As an extra precaution, I called the last known
phone number for Plaintiff during the hearing but could only leave a voicemail.
The Fifth Circuit has repeatedly held that a “district court act[s] well within
the bounds of its discretion when it dismisse[s] for want of prosecution” for failure
to comply with a court order. Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir. 1998).
“Most of the cases affirming dismissals with prejudice have involved the presence
of one or more of three aggravating factors: (1) delay attributable directly to the
plaintiff, rather than his attorney; (2) actual prejudice to the defendant; and (3)
delay caused by intentional conduct.” Callip v. Harris Cnty. Child Welfare Dep’t,
757 F.2d 1513, 1519 (5th Cir. 1985) (cleaned up). All three “aggravating factors” that
merit dismissal with prejudice are present here. Id.
First, the delay in this case, which has been on file for nearly a year, is
“attributable directly to the plaintiff, rather than his attorney,” because Plaintiff
1 At the January 23, 2026, hearing, I granted the request of Plaintiff’s counsel, Adam J.
Flood and Nava Law Group, to withdraw as attorneys for Plaintiff. See Dkt. 34.
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has ceased communicating with his attorney. Id. Second, there is “actual prejudice
to the defendant” who has faced the threat of litigation for nearly a year, expending
time and resources participating in the discovery process without reciprocation by
Plaintiff. Id. Third, the delay in this case was “caused by intentional conduct”
because Plaintiff has not communicated with his counsel in more than six months.
It is incumbent on a litigant to keep his lawyer informed of his whereabouts and
respond to inquiries from counsel. Plaintiff has not done so. Plaintiff’s failure to
communicate with his counsel or otherwise prosecute this case is unacceptable.
Accordingly, I recommend that this case be dismissed for want of prosecution.
Defendant Giac Dinh has filed a Motion to Dismiss/Strike Pleadings and For
Sanctions For Plaintiff’s Failure to Comply With Discovery Order. Dkt. 27. Because
I recommend that this case be dismissed for want of prosecution, I recommend
that Dinh’s motion be denied as moot.
CONCLUSION
For the reasons stated above, I recommend that this case be dismissed for
want of prosecution.
The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this 	day of January 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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