Turnipseed v. APMT, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DORY TURNIPSEED CIVIL ACTION

VERSUS No. 18-5187

APMT, LLC, d/b/a Tonti SECTION: “J”(4)

Management

ORDER & REASONS

Before the Court is a Motion to Dismiss Pursuant to Fed. R. Civ. P. 41(b) for

Failure to Prosecute (Rec. Doc. 35) filed by Defendant, APMT, LLC, D/B/A “TONTI

MANAGEMENT,” on August 15, 2022. On August 23, 2022, Plaintiff Dory

Turnipseed filed a Response in Opposition to Defendant Tonti Management’s Motion

to Dismiss for Lack of Prosecution (Rec. Doc. 36). Defendant filed a Reply

Memorandum in support of its Motion to Dismiss (Rec. Doc. 40) on September 6, 2022.

Having considered the motions, the parties’ arguments, the record of the case, and

the relevant law, this Court finds that Defendant’s Motion to Dismiss with Prejudice

should be DENIED.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff was a tenant in Defendant Tonti Management’s apartment building

and claims that she has a long history of mental health struggles. Plaintiff states that

she was evicted by Defendant Tonti Management and was charged $1050.00 for

exercising her rights under the Fair Housing Act by bringing her emotional support

animal to her apartment in a period of acute mental crisis.

On May 23, 2018, Plaintiff filed a Complaint alleging that Defendant violated

the Fair Housing Act 42 U.S.C. § 3601, by denying her request for an accommodation

of waiving the apartment’s animal fee and weight restriction to allow Plaintiff’s

thirty-five (35) pound dog to live in her apartment. On July 5, 2018, Defendant filed

a Motion to Compel Arbitration and Stay, arguing that Plaintiff Dory Turnipseed’s

lease with Defendant subjected her to a valid and binding arbitration agreement

obligating the parties to submit their disputes, including those arising under the Fair

Housing Act, to arbitration. This Court agreed and on November 13, 2018, granted

Defendant’s motion, ordering Plaintiff to submit her claims to arbitration and staying

the present lawsuit. Since this Court’s Order to arbitrate in 2018, almost four years

have passed, and Plaintiff has yet to submit her claims to arbitration.

PARTIES’ ARGUMENTS

In the Motion to Dismiss Pursuant to Fed. R. Civ. P. 41(b) for Failure to

Prosecute, Defendant asserts that, because this Court retains jurisdiction to dismiss

the matter, this Court should dismiss the matter with prejudice because Plaintiff has

yet to submit her claims to arbitration in the last four years. (Rec. Doc. 35, at 2).

Defendant asserts that Plaintiff has made no effort to initiate arbitration proceedings

and that such inaction displays a “clear record of delay and or contumacious conduct.”

(Rec. Doc. 35, at 4). Moreover, Defendant argues that lesser sanctions would not serve

the best interests of justice, stating that their ability to defend the matter would be

prejudiced. (Rec. Doc. 35, at 4).

In opposition, Plaintiff argues that her failure to initiate arbitration

proceedings was neither intentional nor contumacious because she lacked the

financial resources to initiate arbitration proceedings. (Rec. Doc. 36, at 3). Plaintiff

asserts that she was not responsible for the delay in the proceedings, because she was

awaiting the result of a lengthy administrative process with the U.S. Department of

Housing and Urban Development, a circumstance that was not the intentional

conduct of Plaintiff or her counsel. Id. Furthermore, Plaintiff contends that dismissal

with prejudice is the harshest of sanctions, and that her conduct does not justify such

a consequence. Id. On the contrary, Plaintiff asserts that neither Plaintiff nor her

Counsel engaged in conduct amounting to an intentional violation of a court order or

rule, nor has she or her counsel engaged in conduct amounting to an intentional

delay. Id.; see also (Rec. Doc. 34, at 7) (ordering only that Defendant’s Motion to

Compel Arbitration be granted and “that Plaintiff shall be required to submit her

claims to arbitration”).

In their reply, Defendant maintains that Plaintiff’s failure to submit her claims

to arbitration as ordered by this Court demonstrates contumacious conduct

warranting dismissal with prejudice. (Rec. Doc. 40, at 3). Defendant’s position is that

Plaintiff disobeyed the Court’s Order compelling arbitration and as such, dismissal

with prejudice is the appropriate remedy. Id.

LEGAL STANDARD

A federal trial court has the authority to dismiss a plaintiff’s action because of

a failure to prosecute. Link v. Wabash R.R., 370 U.S. 626, 630-31 (1997) (finding that

a federal court may dismiss an action with prejudice due to a Plaintiff’s failure to

prosecute); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (finding that

the court may dismiss an action sua sponte when a plaintiff fails to comply with a

court order or to prosecute). A court may, in its discretion, dismiss a plaintiff’s action

for failure to prosecute or failure to comply with the Federal Rules of Civil Procedure

or any order of the court, and that such dismissal shall be considered an adjudication

on the merits. Fed. R. Civ. P. 41(b). A district court’s inherent authority to dismiss an

action for a failure to prosecute “is necessary…in order to prevent undue delays in

the disposition of pending cases and to avoid congestion in the calendars of the

District Court.” Wabash R.R. Co., 370 U.S. at 630-31.

DISCUSSION

Defendant moves this Court to dismiss the present matter with prejudice

because Plaintiff failed to arbitrate after we compelled her to do so nearly four years

ago. The “sanction of dismissal is the most severe sanction that a court may apply,

and its use must be tempered by a careful exercise of judicial discretion.” Durham v.

Florida East Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967) (quoting Durgin v.

Graham, 372 F.2d 130, 131 (5th Cir. 1967)). As such, the Fifth Circuit has held

consistently that “Rule 41(b) dismissals with prejudice will be affirmed only upon a

showing of a clear record of delay or contumacious conduct by the plaintiff, and where

lesser sanctions would not serve the best interests of justice.” Rogers v. Kroger Co.,

669 F.2d 317, 320 (5th Cir. 1982) (citation and internal quotations omitted) (emphasis

added) (noting that the sanction of dismissal with prejudice is reserved for the most

egregious of cases, usually where clear delay and ineffective lesser sanctions are

bolstered by at least one aggravating factor).

A dismissal with prejudice for failure to prosecute is only appropriate “when

(1) there is a clear record of delay or contumacious conduct by the plaintiff, and (2)

the district court has expressly determined that lesser sanctions would not prompt

diligent prosecution, or (3) the record shows that the district court employed lesser

sanctions that proved to be futile.” Berry v. Cigna/ RSI-Cigna, 975 F.2d 1188, 1191

(5th Cir. 1992) (emphasis added). A clear record of delay is found where there have

been “significant periods of total inactivity.” Morris v. Ocean Systems, 730 F.2d 248,

251 (5th Cir. 1984). Moreover, where the Fifth Circuit has affirmed such dismissals

with prejudice, the Court found “at least one of three aggravating factors: (1) delay

caused by Plaintiff and not his attorney; (2) actual prejudice to the defendant; or (3)

delay caused by intentional conduct.” Id. (quoting Price v. McGlathery, 792 F.2d 472,

474 (5th Cir. 1986)) (internal quotation marks omitted).

Where a Plaintiff has failed to comply with a few court orders or rules, the

Fifth Circuit has held that the District Court abused its discretion in dismissing the

suit with prejudice. See e.g. Morris v. Ocean Systems, 730 F.2d 248, 251 (5th Cir.

1984) (no record clear record of delay or contumacious conduct where counsel twice

failed to comply with court imposed deadlines); Burden v. Yates, 644 F.2d 503, 504-

05 (5th Cir. 1981) (no clear record of delay or contumacious conduct where counsel

failed to comply with scheduling and other pretrial orders). A dismissal with prejudice

is “an extreme sanction that deprives the litigant of the opportunity to pursue his

claim.” Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1519 (5th Cir.

1985); see also Rogers, 669 F.2d at 332 (suggesting alternatives to dismissal, including

assessments of fines, costs, or damages, against the plaintiff or his counsel, attorney

disciplinary measures, conditional dismissal, dismissal without prejudice, and

explicit warnings); Porter v. Beaumont Enterprise & Journal, 743 F.2d 269, 272 (5th

Cir. 1984) (providing plaintiff with a second or third chance following procedural

default is a lenient sanction which, when met with further default, may justify

dismissal with prejudice); Brown v. Thompson, 430 F.2d 1214, 1216 (noting that

dismissal with prejudice should be used only in extreme situations, as the court has

a wide range of lesser sanctions).

Here, nearly four years have passed since this Court’s order to arbitrate, and

Plaintiff has not yet submitted her claims to arbitration. However, the record does

not reflect contumacious conduct on behalf of the Plaintiff. Nor does the record reflect

the use of lesser sanctions designed to spur Plaintiff into initiating arbitration

proceedings. Lesser sanctions are available which could serve to remedy the issue

before a final order to dismiss the case with prejudice becomes necessary. Granting

Defendant’s Motion at this time would be unduly harsh, because the Court’s previous

Order Compelling Arbitration (Rec. Doc. 34) did not provide Plaintiff with a deadline

to submit her claims to arbitration by in order to be in compliance.

Accordingly,

CONCLUSION

IT IS HEREBY ORDERED that the motion to dismiss is DENIED.

IT IS FURTHER ORDERED that, should Plaintiff fail to initiate arbitration

proceedings within thirty (30) days after entry of this order, Defendant should file a

motion to dismiss with prejudice pursuant to this order, and the Court will grant the

motion.

New Orleans, Louisiana, this 13th day of October, 2022.

Lah

MALY ke :

CARL J. BA RV

UNITED STAVES DISTRICT JUDGE