Marban Romero v. Edlow

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Miguel Angel Marban Romero, 	§
Plaintiff, 	§
§
v. 	§ 	Civil Action H-25-3829
§
Joseph B. Edlow, 	§
Defendant. 	§
MEMORANDUM AND RECOMMENDATION
This case has been referred to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 4. The court sua
sponte 	recommends 	this 	case 	be 	DISMISSED 	for 	failure 	to
prosecute
1. 	Background
This case was set for an initial conference to be held on
November 13, 2025, and was reset to November 20, 2025. ECF Nos.
6 and 7. Both notices were mailed to the physical address that
Plaintiff gave when he filed this lawsuit. Plaintiff did not appear
at the initial conference. See Docket Entry dated 11/20/2025.
The court then set a hearing for the Plaintiff to appear and
show cause why his case should not be dismissed for want of
prosecution. The order included a warning: “Failure to appear
will result in a recommendation that this case be dismissed
for want of prosecution.” See ECF No. 8 (emphasis in original).
The order was 	docketed on 	the court’s CM/ECF system. 	The
hearing was held, and Plaintiff failed to appear.
2. 	Legal Standards
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
United States District Court
Southern District of Texas
ENTERED
December 24, 2025
Nathan Ochsner, Clerk
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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
only be reviewed 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)). 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 defendant was
prejudiced by the delay; or (3) the delay can be characterized as
intentional. Id. at 802 (quoting Berry, 975 F.2d at 1191).
3. Analysis
a. 	Clear Record of Delay
Plaintiff is appearing pro se, so he is responsible for all
efforts to prosecute this case. Plaintiff has failed to appear at two
separate 	court 	settings. 	Other 	than 	initiating 	this 	lawsuit,
Plaintiff has done nothing on the case. Plaintiff has not contacted
the court to provide an updated address. A copy of the noticing
report from the clerk’s office shows the original order setting the
initial conference, the notice of resetting, and the show cause order
were all sent to the Plaintiff’s mailing address. See Court’s
Exhibit 1. These facts show a clear record of delay.
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b. 	Futility of Lesser Sanctions
The court set a show cause hearing and warned Plaintiff that
dismissal 	would 	result 	if 	he 	missed 	the 	final 	hearing. 	There
appears to be nothing the court can do to get the Plaintiff’s
attention on this case. There are no other steps the court can take
that will prompt Plaintiff to participate. Lesser sanctions would be
futile.
c. 	Aggravating Factors
Plaintiff does not have a lawyer, so any delay can only be
attributed to him. The delay in this case can only be characterized
as intentional. Plaintiff has failed to appear for two court-ordered
hearings and has made no attempt to communicate with the court
or opposing counsel.
4. 	Conclusion
For the foregoing reasons, 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 December ___, 2025.
___________________________________
Peter Bray
United States Magistrate Judge
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