The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAQUIN CROCKETT CIVIL ACTION
VERSUS NO. 21-1317
STATE FARM FIRE & CASUALTY CO. SECTION: “G”(4)
ORDER AND REASONS
Plaintiff Jaquin Crockett (“Plaintiff”) filed this case to recover damages from Defendant
State Farm Fire and Casualty Co. (“Defendant”) related to Defendant’s decision not to pay
insurance proceeds under Plaintiff’s policy after a purported vandalism to his vehicle.1 Pending
before the Court is Defendant’s unopposed Motion to Dismiss and for Sanctions, requesting that
the Court dismiss Plaintiff’s claims with prejudice for failure to comply with Court orders and for
failure to prosecute.2 Defendant also seeks an award of reasonable attorneys’ fees incurred in
making this motion.3 Having considered the motion, the memoranda in support, the record, and
the applicable law, the Court grants the motion in part and denies it in part. The Court grants the
motion to the extent it seeks dismissal of this case. The Court denies the motion to the extent it
seeks attorneys’ fees as an additional sanction.
I. Background
On May 20, 2021, Plaintiff, through counsel, filed this case in the Civil District Court for
1 Rec. Doc. 1 at 1.
2 Rec. Doc. 29.
3 Id.
the Parish of Orleans.4 Plaintiff alleged that Defendant issued an insurance policy to Plaintiff
providing vandalism coverage for a 2016 Porsche Cayenne.5 Plaintiff alleged that on or about May
20, 2020, Plaintiff discovered that the vehicle had been broken into and vandalized.6 Plaintiff filed
a claim for recovery under his insurance policy, but Defendant denied the claim.7 Defendant found
that “the loss d[id] not meet the insuring agreement of a sudden direct and accidental loss; the
damage/theft [wa]s excluded as it was caused by or at the direction of [Plaintiff] and that
furthermore [Plaintiff] was in violation of a concealment or fraud provision of the policy.”8
On July 8, 2021, Defendant removed the action to this Court, asserting that the parties are
completely diverse and that the amount in controversy exceeds $75,000.9 A Scheduling
Conference was held, and a Scheduling Order filed on October 5, 2021.10 A bench trial is currently
set for June 6, 2022.11
Defendant filed a Motion to Compel Discovery Responses on January 17, 2022, seeking
an order to compel Plaintiff to respond to Interrogatories and Requests for Production of
Documents that were propounded on November 1, 2021 and due on December 4, 2021.12 Counsel
4 Rec. Doc. 1-1.
5 Id. at 2.
6 Id.
7 Id.
8 Id. at 3.
9 Rec. Doc. 1. Defendant established that the amount in controversy is met because the estimated value of
the claim was $45,803.80 and Plaintiff could recover a penalty in an amount equal to the claim for alleged bad faith
adjusting. Id. at 3–4. See also Rec. Doc. 10.
10 Rec. Doc. 12.
11 Id.; Rec. Doc. 17.
12 Rec. Doc. 19.
for Plaintiff opposed the motion.13 Counsel stated that upon receipt of the discovery requests, they
were immediately forwarded to Plaintiff at his last known address.14 However, Plaintiff did not
respond and his whereabouts were unknown to counsel.15 Counsel called Plaintiff and placed a
legal notice in the Advocate/Times Picayune, to no avail.16 Counsel requested additional time to
locate Plaintiff and secure responses to Defendant’s discovery requests.17 On February 2, 2022,
the assigned Magistrate Judge granted the motion to compel.18 The Magistrate Judge ordered
Plaintiff to respond to Defendant’s Interrogatories and Requests for Production of Documents on
or before February 16, 2022.19
On March 3, 2022, Plaintiff’s counsel filed a motion to withdraw.20 Counsel stated that
Plaintiff refused to cooperate and assist counsel in preparing the discovery responses, and Plaintiff
failed to maintain contact with counsel.21 Counsel represented that he had notified Plaintiff of all
deadlines and pending court appearances via letter sent by certified mail to Plaintiff’s last known
address.22 On March 7, 2022, the Court granted the motion to withdraw.23 Plaintiff has been
13 Rec. Doc. 20.
14 Rec. Doc. 20-1 at 1.
15 Id.
16 Id.
17 Id.
18 Rec. Doc. 22.
19 Id.
20 Rec. Doc. 25.
21 Id.
22 Id.
23 Rec. Doc. 26.
proceeding pro se since that time. However, he has not appeared to prosecute his case.
On March 18, 2022, Defendant filed a witness and exhibit list, as required by the
Scheduling Order.24 No witness or exhibit lists were filed by Plaintiff. On April 28, 2022, the
Magistrate Judge convened a settlement conference, but Plaintiff failed to appear.25
On March 22, 2022, Defendant filed the instant Motion to Dismiss and for Sanctions.26
The motion was noticed for submission on April 6, 2022.27 Pursuant to Local Rule 7.5, any
opposition to a motion must be filed eight days before the noticed submission date. Plaintiff has
filed no opposition to the motion, and therefore the motion is deemed to be unopposed. This Court
has authority to grant a motion as unopposed, although it is not required to do so.28 District courts
may grant an unopposed motion as long as the motion has merit.29
II. Defendant’s Arguments
Defendant moves the Court to dismiss this case pursuant to Rules 37(b) and 41(b) of the
Federal Rules of Civil Procedure.30 Defendant also seeks an order for Plaintiff to pay Defendant’s
reasonable attorney’s fees in making this motion pursuant to Rule 37(b)(2)(C).31 Defendant
contends that Plaintiff has failed to comply with the February 2, 2022 discovery order, and failed
24 Rec. Doc. 28.
25 Rec. Doc. 32.
26 Rec. Doc. 29.
27 Rec. Doc. 29-1.
28 Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 356 (5th Cir. 1993).
29 See Braly v. Trail, 254 F.3d 1082 (5th Cir. 2001).
30 Rec. Doc. 29-1 at 1.
31 Id.
to comply with the Scheduling Order deadline for witness and exhibit lists.32 Defendant contends
that these violations are plainly attributable to Plaintiff, as his counsel was forced to withdraw due
to Plaintiff’s failure to cooperate in the prosecution of the claim.33 Defendant asserts that it has
been substantially prejudiced by Plaintiff’s misconduct because it has been unable to obtain
discovery from Plaintiff regarding names and addresses of potential witnesses and other potential
documentary evidence.34 Defendant contends that no sanction short of dismissal is appropriate
because Plaintiff’s failure to respond has denied Defendant necessary information to prepare for
trial.35 Finally, Defendant asserts that attorneys’ fees should be awarded for failure to comply with
the discovery order.36
III. Legal Standard
Pursuant to Federal Rule of Civil Procedure 41(b), “if the plaintiff fails to prosecute or
comply with [the Federal Rules of Civil Procedure] or a court order, a defendant may move to
dismiss the action or any claim against it.”37 To dismiss an action in this manner, there must be a
clear record of delay or contumacious conduct by the plaintiff, and the court must expressly find
that no lesser sanction would suffice to prompt diligent prosecution.38 A clear record of delay is
found where there have been “significant periods of total inactivity.”39 Even when that standard
32 Id. at 5.
33 Id.
34 Id.
35 Id.
36 Id. at 6.
37 Fed. R. Civ. P. 41(b); see also McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988).
38 Raborn v. Inpatient Mgmt. Partners Inc., 278 Fed. App’x 402, 404 (5th Cir. 2008).
39 Berry v. CIGNA/RSI CIGNA, 975 F.2d 1188, 1191 n.5 (5th Cir. 1992) (citing Morris v. Ocean Sys., Inc.,
is met, at least one of the following “aggravating factors” should usually be present: (1) the delay
was caused by the plaintiff, as opposed to his attorney; (2) the defendant suffered actual prejudice;
or (3) the delay was caused by intentional conduct.40 Dismissals pursuant to Rule 41(b) are
reviewed for abuse of discretion.41
Similarly, Federal Rule of Civil Procedure 37(b)(2)(A) provides that a court may, on
motion, order sanctions if a “party . . . fails to obey an order to provide or permit discovery.” Rule
37(b)(2)(A) also sets forth the types of sanctions a court may impose.42 Possible sanctions are
listed in Rule 37(b)(2)(A)(i)–(vii) and include, among other options, dismissing the action or
proceeding in whole or in part.43 “Because of the severity of [the] sanction, dismissal with
prejudice typically is appropriate only if the refusal to comply with a discovery order results from
willfulness or bad faith and is accompanied by a clear record of delay or contumacious conduct.”44
Pursuant to Rule 37(b)(2)(C), “[i]nstead of or in addition to the [sanctions listed in Rule
37(b)(2)(A)], the court must order the disobedient party, the attorney advising that party, or both
to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure
was substantially justified or other circumstances make an award of expenses unjust.”45
Dismissal of a plaintiff’s action with prejudice is “reserved exclusively for clear records of
contumacious and continuing discovery misconduct or delay, ordinarily involving failure to
730 F.2d 248, 252 (5th Cir. 1984)).
40 Id.
41 Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 441 (5th Cir. 2016).
42 Fed. R. Civ. P. 37(b)(2)(A)(i)–(vii).
43 Fed. R. Civ. P. 37(b)(2)(A)(v).
44 Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1032 (5th Cir. 1990).
45 Fed. R. Civ. P. 37(b)(2)(C).
comply with multiple court orders.”46 “[I]t is not a party’s negligence—regardless of how careless,
inconsiderate, or understandably exasperating—that makes conduct contumacious; instead it is the
stubborn resistance to authority which justifies a dismissal with prejudice” of a claim or affirmative
defense.47 Dismissal with prejudice “is an extreme sanction that deprives a litigant of the
opportunity to pursue his claim.”48 It is an appropriate sanction, therefore, only where the
misconduct is egregious and where “lesser sanctions would not serve the best interests of
justice.”49
IV. Analysis
Here, the record undisputedly establishes that Plaintiff has on numerous occasions failed
to comply with court orders, respond to Defendant, or appear to prosecute his claim. Plaintiff failed
to respond to Defendant’s Interrogatories and Requests for Production of Documents in December
2021, requiring Defendant to file a motion to compel.50 Plaintiff also failed to comply with the
February 2, 2022 Order granting the motion to compel. Plaintiff then failed to comply with the
46 Bombardier v. State Farm Fire & Cas. Co., No. 16-568, 2016 WL 4799098, at *2 (E.D. La. Sept. 14, 2016)
(Wilkinson, M.J.) (citing Doe v. Am. Airlines, 283 Fed. App’x 289, 291 (5th Cir. 2008); Davis v. Auto Club Family
Ins. Co.; No. 07-8545, 2008 WL 5110619, at *1 (E.D. La Dec. 2, 2008) (Vance, J.) (citing FDIC v. Conner, 20 F.3d
1376, 1380 (5th Cir. 1994); quoting Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 515 (5th Cir. 1985); EEOC v.
Gen. Dynamics Corp., 999 F.2d 113, 119 (5th Cir. 1993)).
47 Brown v. Oil States Skagit Smatco, 664 F.3d 71, 77 (5th Cir. 2011) (quoting McNeal v. Papasan, 842 F.2d
787, 792 (5th Cir. 1988)).
48 Id. (quoting Woodson v. Surgitek, Inc., 57 F.3d 1406, 1418 (5th Cir. 1995)).
49 Id. (quoting Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1159 (5th Cir. 1985)).
50 Rec. Doc. 19.
Scheduling Order requiring Plaintiff to file witness and exhibit lists by March 18, 2022.51 Plaintiff
also failed to appear for a court ordered settlement conference on April 28, 2022.52
Plaintiff’s counsel requested leave of Court to withdraw because Plaintiff refused to
cooperate and assist counsel in preparing the discovery responses, and Plaintiff failed to maintain
contact with counsel.53 Since he began proceeding pro se, Plaintiff has not made any contact with
Defendant or with the Court.
On March 22, 2022, Defendant filed the instant motion, requesting that the Court dismiss
Plaintiff’s claims with prejudice for failure to prosecute.54 Plaintiff has not opposed this motion.
Federal Rule of Civil Procedure 37(b)(2)(A) provides for sanctions against a party who fails to
obey a discovery order, including dismissing the action or proceeding in whole or in part.55
Likewise, pursuant to Rule 41(b), “if the plaintiff fails to prosecute or comply with [the Federal
Rules of Civil Procedure] or a court order, a defendant may move to dismiss the action or any
claim against it.”56
While the Court is aware that Plaintiff is currently unrepresented by counsel and that
dismissal with prejudice “is a harsh action, to be used only in extreme circumstances,”57 Plaintiff’s
pro se status does not diminish his responsibility in this case. Dismissal is warranted when a court
51 Rec. Doc. 12 at 3.
52 Rec. Doc. 32.
53 Rec. Doc. 25.
54 Rec. Doc. 29.
55 Fed. R. Civ. P. 37(b)(2)(A)(v).
56 Fed. R. Civ. P. 41(b); see also McCullough, 835 F.2d at 1127.
57 Kabbe v. Rotan Mosle, Inc., 752 F.2d 1083, 1084 (5th Cir. 1985).
is faced with “[d]eliberate, repeated refusals to comply with discovery orders.”58 Defendant has
continued to incur expenses as it strives to comply with Court deadlines, while Plaintiff has failed
to appear in this matter, respond to the Court’s orders, or respond to requests from opposing
counsel since his counsel withdrew on March 7, 2022. Plaintiff also failed to maintain any contact
with his counsel for many months before counsel withdrew.59 Defendant served discovery requests
on Plaintiff’s counsel on November 1, 2021, but despite numerous efforts on the part of Plaintiff’s
counsel, he could not reach Plaintiff to assist with the discovery responses. This ultimately led to
Plaintiff’s counsel requesting leave of Court to withdraw from the case as he could not fulfill his
obligation to complete the discovery without the necessary factual information from Plaintiff.
Moreover, counsel notified Plaintiff of all deadlines before he withdrew. Therefore, Plaintiff’s
failure to comply is deliberate and directly attributable to Plaintiff, not his counsel.60
Based on the foregoing, the Court finds that there is a clear record of unreasonable delay
caused by Plaintiff, and that no lesser sanction other than dismissal would suffice.61 Therefore, the
Court finds that it is appropriate to dismiss Plaintiff’s claims with prejudice to best serve the
interests of justice because Plaintiff has repeatedly demonstrated an unwillingness to continue
prosecution of this case.
Defendant also requests attorneys’ fees under Rule 37(b)(2)(C). The Rule provides that
“[i]nstead of or in addition to the [sanctions listed in Rule 37(b)(2)(A)], the court must order the
disobedient party, the attorney advising that party, or both to pay the reasonable expenses,
58 Id. (quoting Bonaventure v. Butler, 593 F.2d 625, 626 (5th Cir. 1979)).
59 Rec. Doc. 25.
60 Id.
61 Raborn, 278 Fed. App’x at 404.
including attorney’s fees, caused by the failure, unless the failure was substantially justified or
other circumstances make an award of expenses unjust.”°? The Fifth Circuit has recognized that
district courts have “broad discretion under Rule 37(b) to fashion remedies suited to the
misconduct.”°* As explained above, because dismissal with prejudice is warranted, the Court finds
that an additional sanction of attorneys’ fees to be unjust under these circumstances.
V. Conclusion
Based on the foregoing, the record undisputedly establishes that Plaintiff has on numerous
occasions failed to comply with court orders, respond to Defendant, or appear to prosecute his
claims. Considering the foregoing conclusion that dismissal with prejudice is warranted, the Court
finds that an additional sanction of attorneys’ fees to be unjust under these circumstances.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss and for Sanctions™ is
GRANTED IN PART and DENIED IN PART. The motion is GRANTED to the extent it
requests dismissal of this case. The motion is DENIED to the extent it requests attorneys’ fees as
an additional sanction.
NEW ORLEANS, LOUISIANA, this 16th day of May, 2022.
NANNETTE JOLAYETTE BROWN □□□
CHIEF JUDGE
UNITED STATES DISTRICT COURT
® Fed. R. Civ. P. 37(b)(2\(C).
8 Pressey v. Patterson, 898 F.2d 1018, 1021 (Sth Cir. 1990).
& Rec. Doc. 29.
10