Evans v. Reliable Chevrolet et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TIFFANY EVANS,
Plaintiff,
v.
RELIABLE CHEVROLET, et al.,
Defendants.
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CASE NO. 4:25-CV-4467
JUDGE DENA PALERMO’S
REPORT AND RECOMMENDATION1
On September 19, 2024, Plaintiff filed a pro se complaint. Compl., ECF
No. 1. She then amended her complaint on April 17, 2026. Am. Compl., ECF No. 14.
On May 11, 2025, Defendants filed a motion to dismiss under Rule 12(b)(1)
asserting lack of subject matter jurisdiction and Rule 12(b)(6) asserting failure to
state a claim for relief. ECF No. 18. Plaintiff failed to respond to the motion.
Therefore, the Court ordered Plaintiff to respond by June 22, 2026. Order, ECF
No. 20. Despite the Court’s order, Plaintiff still did not respond to the motion by the
extended deadline. To date, Plaintiff has not complied with the Court’s directive.
Because Plaintiff failed to prosecute this action and comply with the Court’s order,
the Court recommends that the case be dismissed under Federal Rule of Civil
Procedure 41(b).
Federal Rule of Civil Procedure 41(b) provides that if “the plaintiff fails to
1 The district judge to whom this case is assigned referred all pre-trial proceedings to the
undersigned. Referral Order, ECF No. 19.
United States District Court
Southern District of Texas
ENTERED
June 25, 2026
Nathan Ochsner, Clerk
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prosecute or to comply with these rules or a court order, a defendant may move to
dismiss the action or any claim against it.” Castillo v. Becka, No. 2:21-CV-00162,
2022 WL 5264612, at *2 (S.D. Tex. Aug. 31, 2022), adopted, No. 2:21-CV-00162,
2022 WL 5264650 (S.D. Tex. Oct. 6, 2022) (quoting Fed. R. Civ. P. 41(b)). Pursuant
to this rule, the Court “has the inherent authority to dismiss an action sua sponte for
failure to prosecute, with or without notice to the parties,” which flows from the
Court’s “inherent power to control its docket and prevent undue delays in the
disposition of pending cases.” Id. (quoting Clofer v. Perego, 106 F.3d 678, 679 (5th
Cir. 1997) (per curiam); 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, 629-31 (1962))). The
decision to dismiss under Rule 41(b) is reviewed for abuse of discretion. Lancon v.
Stafflink, Inc., No. CIVILACTIONH182051, 2019 WL 1046951, at *2 (S.D. Tex.
Feb. 5, 2019), adopted, No. CV H-18-2051, 2019 WL 1040980 (S.D. Tex. Mar. 5,
2019) (citing Link, 370 U.S. at 633; Rogers v. Kroger Co., 669 F.2d 317, 320 (5th
Cir. 1982)).
Generally, dismissal for want of prosecution is without prejudice. Castillo,
2022 WL 5264612, at *3 (Ray v. Johnson & Johnson, No. 1:20-CV-129-DMB-RP,
2021 WL 1030987, at *1 (N.D. Miss. Mar. 17, 2021)). “[A] dismissal with prejudice
for failure to prosecute is an extreme sanction which is to be used only when the
integrity of the judicial process is threatened by plaintiff’s conduct in such a way
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that the court is left with no choice except to deny that plaintiff its benefits.” Id.
(citing Gist v. Lugo, 165 F.R.D. 474, 477 (E.D. Tex. 1996) (citing McNeal v.
Papasan, 842 F.2d 787, 790 (5th Cir. 1988))). Rule 41(b) dismissal is “an extreme
sanction” which requires: (1) a clear record of delay or contumacious conduct by
Plaintiff; and (2) a finding that lesser sanctions would be, or proved to be, futile. See
id. (citing Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992);
McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988)). Frequently, the Court
requires proof of at least one aggravating factor: (1) the delay is caused by the
Plaintiff and not Plaintiff’s attorney, (2) Defendants were actually prejudiced
because of the delay, or (3) the delay is intentional. Lancon, 2019 WL 1046951, at
*2 (Papasan, 842 F.2d at 790; Sturgeon v. Airborne Freight Corp., 778 F.2d 1154,
1159 (5th Cir. 1985)).
In the six weeks since Defendant filed its motion to dismiss, Plaintiff has not
filed a response to the motion to dismiss despite the Court’s order to do so. Plaintiff
has not contacted the Court since filing her amended complaint in April 2026. ECF
No. 14. These facts constitute a clear record of delay Plaintiff’s failure to prosecute
this case has caused. Castillo, 2022 WL 5264612, at *2 (“Dismissal is warranted,
because Plaintiff failed to update the Court regarding her search for new counsel,
failed without excuse to attend a scheduled hearing, failed to respond to Defendant’s
motion to dismiss, and failed otherwise to communicate with the Court.”) (citing
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Gilmore v. Guild Mortg. Co., L.L.C., No. 1:21-CV-00621-MAC-ZJH, 2022 WL
2712385, at *1 (E.D. Tex. Feb. 22, 2022), adopted, No. 1:21-CV-00621, 2022 WL
2712382, at *1 (E.D. Tex. Mar. 10, 2022) (dismissal appropriate under Rule 41(b)
where the plaintiff failed to confer with the defendant and failed to respond to the
motion to dismiss); Douglas v. Zabransky, No. H-18-4168, 2019 WL 3628748, at
*1 (S.D. Tex. July 18, 2019), adopted, 2019 WL 3570451, at *1 (S.D. Tex. Aug. 5,
2019) (dismissal warranted where the plaintiff failed to comply with court orders,
failed to respond to the motion to dismiss, and did not appear at a scheduling
conference); Connely v. City of Pascagoula, No. 1:11-CV-293-HSO-JMR, 2013 WL
2182944, at *2 (S.D. Miss. May 20, 2013) (granting a motion to dismiss for want of
prosecution where the plaintiffs failed to take action in the case, contact the court,
and comply with court orders); Martin v. Gilbert, No. 1:12-CV-327-HSO-RHW,
2013 WL 4014990, at *2 (S.D. Miss. Aug. 6, 2013) (same)).
The Court has unsuccessfully admonished Plaintiff, a lesser sanction. In the
order discussed above, the Court warned Plaintiff that her failure to respond may
result in the case being dismissed for lack of prosecution. Order, ECF No. 20. Also
in that order, the Court extended Plaintiff’s deadline to respond, permitting Plaintiff
additional weeks to respond—again, futile efforts. Id. The Court is not convinced
that monetary sanctions would have any effect, considering Plaintiff’s pro se status.
See Lancon, 2019 WL 1046951, at *3. In sum, the Court finds that sanctions other
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than dismissal would be pointless. It appears that Plaintiff has abandoned this suit.
Moreover, the Court recommends that Plaintiff’s case be dismissed with
prejudice. Because Plaintiff is a pro se litigant, the delay is her fault, and further, her
failure to respond to the motion, despite an order and ample time to do so, cannot be
characterized as anything but intentional. See Lancon, 2019 WL 1046951, at *3.
Accordingly, 	the 	Court 	recommends 	dismissing 	this 	case 	with 	prejudice, 	in
accordance with Federal Rule of Civil Procedure 41(b). See Castillo, 2022 WL
5264612, at *2.
III. 	CONCLUSION
The Court 	RECOMMENDS 	that this lawsuit be 	DISMISSED WITH
PREJUDICE under Federal Rule of Civil Procedure 41(b).
The 	Parties 	have 	fourteen 	days 	from 	service 	of 	this 	Report 	and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1)(C); Fed.
R. Civ. P. 72(b). Failure to file timely objections will preclude appellate review
of factual findings or legal conclusions, except for plain error. Ortiz v. San
Antonio Fire Dep’t, 806 F.3d 822, 825 (5th Cir. 2015).
Signed on June 24, 2026, at Houston, Texas.
___________________________________
Dena Hanovice Palermo
United States Magistrate Judge
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