# Martin v. United Fire & Indemnity Company

> District Court, E.D. Louisiana · August 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10648357

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** August 5, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLES MARTIN * CIVIL ACTION

VERSUS * NO. 22-4850
UNITED FIRE & INDEMNITY COMPANY * SECTION L
ORDER & REASONS

Before the Court is Defendant United Fire & Indemnity Company’s motion to dismiss the
instant case for failure to prosecute. R. Doc. 20. Plaintiff Charles Martin has not responded.
Considering the briefing and the applicable law, the Court rules as follows.
I. BACKGROUND

This case arises out of alleged damage to Mr. Martin’s property as a result of Hurricane
Ida. R. Doc. 1 at 3. The law firm McClenny, Moseley & Associates (MMA) filed the present action
on behalf of Mr. Martin on December 4, 2022. Id. at 10. On March 2, 2023, Chief Judge Brown
stayed this matter—along with all other cases filed by MMA pending in this district—due to
fraudulent conduct by the firm. R. Doc. 5. Approximately a month later, Mr. Martin’s MMA
counsel withdrew, leaving him unrepresented. R. Doc. 11. On June 30, 2023, Chief Magistrate
Judge Michael North sent a letter to Mr. Martin notifying him of the action and informing him
that, to proceed with the lawsuit, he could take one of three actions: (1) hire a new lawyer, (2)
represent himself, or (3) dismiss the matter and waive his rights regarding his claim and any other
issues therein. R. Doc. 14. Additionally, the letter ordered Mr. Martin to notify the Court of his
decision within sixty days and noted that his failure to do so may result in dismissal of his case.
On July 26, 2024, Defendant United Fire and Indemnity Company filed the instant motion
for involuntary dismissal pursuant to Federal Rule of Civil Procedure 41(b). R. Doc. 20. United
Fire argues that Mr. Martin has failed to respond or appear in the suit within sixty days, as required
by Chief Judge Brown’s letter. R. Doc. 20. Moreover, it attaches the affidavit of its employee,
senior fields adjustor Michael Collette, who maintains that he spoke to Mr. Martin by telephone
on July 26, 2023. R. Doc. 20-2. Mr. Collette represents that Mr. Martin “verbally confirmed that

he did not authorize the filing of the instant lawsuit, he did not intend to retain new counsel
following the disbarment of McClenny Mosely & Associates, and that he did not wish to pursue
this action.” Id. Further, Plaintiff alleges that he followed up with Mr. Martin by sending him an
email on September 18, 2023, but received no response from Mr. Martin. Id.
II. APPLICABLE LAW AND ANALYSIS

Rule 41(b) allows district courts to dismiss an action upon the motion of a defendant or its
own motion, for failure to prosecute. Morris v. Ocean Systems, 730 F.2d 248, 251 (5th Cir. 1984);
Rogers v. Kroger Co., 669 F.2d 317, 319-20 (5th Cir. 1982). This authority is based on the power
of district courts “to manage their own affairs so as to ensure the orderly and expeditious
disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). Further, “[w]hen a
plaintiff is given an opportunity to amend a complaint that fails to state a claim upon which relief
can be granted, but refuses to do so, then the district court is justified in dismissing the complaint.”
Rodriguez v. United States, 66 F.3d 95, 98 (5th Cir. 1995).
Here, Mr. Martin has not filed anything in the case, nor taken any action at all, in the sixteen
months since his MMA counsel withdrew. He never responded to this Court’s June 30, 2023 letter,
which instructed him to take action within sixty days. And, United Fire’s employee has sworn out
an affidavit attesting that Mr. Martin advised that he did not intend to pursue his claim. R. Doc.
20-2. Accordingly, the Court finds that dismissal of his complaint without prejudice is warranted.
I. CONCLUSION
Accordingly, United Fire & Indemnity Company’s Motion to Dismiss for Failure to
Prosecute, R. Doc. 20, is GRANTED. Charles Martin’s claims are hereby DISMISSED against
United Fire & Indemnity Company without prejudice.

New Orleans, Louisiana this 2nd day of August, 2024.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10648357. Public record. Not legal advice.