Buckey et al v. Henry's Uptown Bar, LLC

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JORDAN BUCKEY AND WILLIAM
TREVOR

CIVIL ACTION
VERSUS

NO. 25-747
HENRY’S UPTOWN BAR

SECTION “R” (5)

ORDER AND REASONS
Before the Court is defendant Henry’s Uptown Bar’s motion to dismiss
for failure to prosecute.
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Plaintiffs Jordan Buckey and William Trevor
oppose the motion.
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For the reasons that follow, defendant’s motion to
dismiss is DENIED, and the Court sua sponte elects to impose sanctions on
plaintiffs’ counsel, pursuant to Federal Rule of Civil Procedure 16(f), for
failure to follow this Court’s scheduling order.

I. BACKGROUND
On April 15, 2025, plaintiffs initiated this action against defendant.
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Plaintiffs allege that they were previously employed as bartenders by Henry’s
Uptown Bar and that defendant misclassified them as “independent

1
R. Doc. 13.
2
R. Doc. 21.
3
R. Doc. 1.
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contractors” in order to avoid paying them earned overtime.
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Plaintiffs
additionally allege that Henry’s Uptown Bar improperly deducted money
from tips plaintiffs earned.
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Plaintiff Buckey further alleges that she was
sexually harassed by a Henry’s Uptown Bar patron who was “friendly” with
one of the bar’s owners and that Henry’s Uptown Bar allowed the patron to
continue visiting the establishment after Buckey reported the harassment.
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Plaintiffs brought four claims: (1) unpaid overtime in violation of the Fair
Labor Standards Act; (2) illegal deductions from tips; (3) employee
misclassification; and (4) sexual harassment (only brought by plaintiff
Buckey).
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Defendant filed its answer and corporate disclosure on June 30, 2025,
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and this Court held a scheduling conference on August 7, 2025.
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The Court
issued a scheduling order on August 15, 2025, which contained the following
key deadlines: Initial disclosures were to be exchanged by September 5,
2025; discovery, including all depositions, was to conclude by January 20,

4
See generally id.
5
See generally id.
6
See id. at 7-8.
7
See generally id.
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R. Docs. 4, 5.
9
R. Doc. 6.
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2026; witness lists were to be filed by January 20, 2026; and exhibits were
to be exchanged by March 2, 2026.
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On January 20, 2026, in compliance with this Court’s scheduling
order, defendant filed its witness and exhibit list with the Court.
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The
following events are per an email chain defendant attached to the present
motion: On September 5, 2025, defendant sent plaintiffs’ counsel its initial
disclosures; on September 17, 2025, defendant followed up with plaintiffs’
counsel regarding plaintiffs’ initial disclosures, representing that it had yet
to receive anything; on September 23, 2025, plaintiffs’ counsel informed
defendant that she had “snail mail[ed]” the disclosures and attached the
disclosures to the email.
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Defendant represents that it never received the
disclosures via postage.
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The email chain provided by defendant additionally shows the
following: On March 2, 2026, defendant sent its list of trial exhibits along
with copies to plaintiffs’ counsel; on March 3, 2026, plaintiffs’ counsel
informed defendant that she needed a continuance in the matter because of
other obligations in her work schedule; defendant’s counsel replied on March

10
R. Doc. 7.
11
R. Doc. 12.
12
See R. Doc. 13-2 at 4-5.
13
R. Doc. 13.
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6, 2026, asking the scope of the continuance that plaintiffs’ counsel sought
to request.
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No continuance request was filed with the Court.
On March 12, 2026, defendant filed the present motion, to which
plaintiffs responded. Notably, plaintiffs still have not filed a motion for
continuance, nor have plaintiffs filed any response to defendant’s motion in
limine, such response being due March 25, 2026.
The Court considers the motion below.

II. LAW AND ANALYSIS
Federal Rule of Civil Procedure 41(b) empowers this Court to
involuntarily dismiss an action, with prejudice, “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court order . . . .” However, the
Fifth Circuit has noted that such an action should be a last resort as it “is an
extreme sanction that deprives the litigant of the opportunity to pursue his
[or her] claim.” Berry v. Cigna/RSI-Cigna, 975 F.2d 1188, 1191 (5th Cir.
1992) (quoting Callip v. Harris Cnty. Child Welfare Dep’t, 757 F.2d 1513,
1519 (5th Cir. 1985) (internal quotations omitted)). Instead, “[l]esser
sanctions such as fines or dismissal without prejudice are usually
appropriate . . . .” Bryson v. United States, 553 F.3d 402, 403 (5th Cir.

14
R. Doc. 13-2 at 10-15.
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2008) (citing Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996)); see also
Rogers v. Kroger Co., 669 F.2d 317, 321-22 (5th Cir. 1982) (“Assessments of
fines, costs, or damages against the plaintiff or his counsel, attorney
disciplinary measures, conditional dismissal, dismissal without prejudice,
and explicit warnings are preliminary means or less severe sanctions . . . .”).
Dismissal with prejudice under Rule 41(b) is appropriate only when
"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.”
Davila v. Price, 129 F.3d 609, at*2 (5th Cir. 1997) (per curiam) (cleaned up).
A clear record of delay exists when there have been “significant periods of
total inactivity.” Shaw v. The United Mexican States, No. 23-40422, 2024
WL 1113013, at *2 (5th Cir. Mar. 14, 2024) (per curiam) (citation and internal
quotation marks omitted). Before sanctioning a party via dismissal with
prejudice, the district court must expressly determine that “lesser sanctions
would not prompt diligent prosecution,” or the record must show that the
district court “employed lesser sanctions that proved to be futile.” Berry, 975
F.2d at 1191. Typically, one of three aggravating factors must be present: “(1)
delay caused by the plaintiff [herself] and not [her] attorney; (2) actual
prejudice to the defendant; or (3) delay caused by intentional conduct.”
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Campbell v. Wilkinson, 988 F.3d 798, 802 (5th Cir. 2021) (quoting Berry,
975 F.2d at 1191).
Applying this standard to the instant case, the Court finds that there is
a clear record of delay by the plaintiffs. And plaintiffs’ counsel has failed to
show good cause for her delinquency. Attorneys are responsible for
managing their workloads. Over-scheduling oneself is not good cause for
missing this Court’s deadlines. Moreover, plaintiffs’ counsel provides no
excuse for not alerting the Court to the need for a continuance prior to
missing critical deadlines. Counsel’s excuse, that the deadlines were “not
properly transferred” to her calendar, is uncompelling. Regardless of the
accuracy and completeness of her own calendar, defense counsel’s emails
regarding the initial disclosures and later the trial exhibits should have
alerted plaintiffs’ counsel to the deadlines in this matter. Similarly,
defendant’s filing of its witness and exhibit lists should have indicated that
the deadlines in this matter had not been re-set. If nothing else, that filing
should have alerted her to check the docket, at which point a reasonably
prudent lawyer would have noticed that no continuance had been filed, and
the Court had issued no updated scheduling order.
Despite this record of unjustified conduct, the Court finds that the
extreme remedy of dismissal is not warranted, particularly as this Court has
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not previously imposed “lesser sanctions.” Moreover, there is no evidence
that the delays are due to plaintiffs themselves and not their attorney, that
defendant has been prejudiced by plaintiffs’ failure to meet pre-trial
deadlines, or that the delays are intentional. In lieu of a dismissal, the Court
imposes a sanction on plaintiffs’ counsel of $5,000, plus attorney’s fees,
pursuant to Federal Rule of Civil Procedure 16(f), for failing to comply with
this Court’s scheduling order. The Court finds that this sanction is sufficient,
but not greater than necessary, to discourage further dilatory conduct and to
achieve compliance with this Court’s orders. Cf. Silas v. Sears, Roebuck &
Co., Inc., 586 F.2d 382, 385 (5th Cir. 1978) (holding that in the absence of “a
clear record of delay or contumacious conduct by the plaintiff . . . the trial
court’s discretion is limited to the application of lesser sanctions designed to
achieve compliance with court orders and expedite proceedings”).

III. CONCLUSION
For the foregoing reasons, the Court DENIES defendant’s motion to
dismiss.
IT IS ORDERED, pursuant to Federal Rule of Civil Procedure 16(f),
plaintiffs’ counsel shall be sanctioned in the amount of $5,000, plus all
attorney’s fees associated with defendant’s motion to dismiss, for failing to
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comply with this Court’s scheduling order. The precise amount of attorney’s
fees shall be determined by the magistrate judge.
New Orleans, Louisiana, this _____ day of April, 2026.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
16th
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