The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
BENOIT FORD LLC, ET AL. : CIVIL ACTION NO. 2:22-cv-06024
VERSUS : JUDGE JAMES D. CAIN, JR.
LEXINGTON INSURANCE CO., ET AL. : MAGISTRATE JUDGE LEBLANC
REPORT AND RECOMMENDATION
Pursuant to the power of the court to manage and administer its own affairs to ensure the
orderly and expeditious disposition of cases, it is the RECOMMENDATION, issued sua sponte,
that this matter be DISMISSED WITHOUT PREJUDICE for plaintiffs’ failure to prosecute and
failure to follow the rules and orders of this court.
I.
BACKGROUND
This suit was filed in the 30th Judicial District Court, Vernon Parish, Louisiana, by plaintiff
through their former counsel. Doc. 1, att. 2, pp. 3-9. After the matter was removed to this court,
the court held a scheduling conference to set the matter for trial, during which plaintiffs’ counsel
informed the court of their intention to withdraw as counsel of record. Doc. 67. Counsel
subsequently filed a motion to withdraw. Doc. 70. Counsel explained they notified plaintiffs of
all deadlines and pending court appearances and provided the court with plaintiffs’ contact
information. Id. at p. 2.
The court originally denied the motion because to grant such a motion “would leave two
juridical entities unrepresented and hamper the Court’s ability to see this matter to a conclusion.”
Doc. 72. The court, however, indicated counsel would be allowed to withdraw immediately if
substitute counsel enrolled. Id. The court also cautioned that if plaintiffs did not retain new counsel
to substitute for current counsel by March 2, 2024, the court would recommend this matter be
dismissed for failure to prosecute. Id. Withdrawing plaintiffs’ counsel was ordered to forward
notice of the order to plaintiffs and to certify their efforts to provide such notice. Id. Counsel
complied. Doc. 73. No substitute counsel has enrolled.
The court held a scheduling conference on March 26, 2024, and withdrawing plaintiffs’
counsel appeared for plaintiff and again informed the court of their intention to withdraw. Doc.
75. The minutes from the scheduling conference warned plaintiffs they had until April 23, 2024,
to have new counsel enroll, otherwise they would “be subject to a recommendation of dismissal
for failure to prosecute and/or for failure to obey orders of the court.” Id.
The court issued a memorandum order allowing former plaintiffs’ counsel to withdraw and
again informing plaintiffs that as juridical entities, plaintiffs can only be represented in court by
licensed counsel. Doc. 76. The order again cautioned plaintiffs that by April 23, 2024, “counsel
must be enrolled to represent each of the plaintiffs. Failure to enroll new counsel will result in a
recommendation that the case as to any such unrepresented plaintiff be dismissed without
prejudice. . . .” Id. at p. 3. This deadline has since passed, and plaintiffs’ counsel has still not
enrolled, in violation of this court’s order [doc. 76].
II.
LAW & ANALYSIS
Rule 41(b) of the Federal Rules of Civil Procedure “allows the district court to dismiss an
action upon the motion of a defendant, or upon its own motion, for failure to prosecute.” Berry v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190 (5th Cir. 1992). “The power to invoke this sanction is
necessary in order to prevent undue delays in the disposition of pending cases and to avoid
congestion in the calendars of the District Courts.” Link v. Wabash R. R. Co., 82 S. Ct. 1386, 1388
(1962).
The court has warned plaintiffs thrice already that they must be represented by an attorney
at law to proceed in this matter. E.g., docs. 72, 75, 76. As detailed above, plaintiffs have failed to
obtain enrolled counsel so they can participate in the prosecution of this case. Additionally, this
court issued two orders instructing plaintiffs to obtain counsel to enroll in this matter on plaintiffs’
behalf and warning plaintiffs that failure to do so would lead the court to issue a Report and
Recommendation that this matter be dismissed. Docs. 72, 76. Plaintiffs failed to abide by those
orders. All of this taken together indicates plaintiffs are not prosecuting their claim as they should.
Therefore, the court finds that plaintiffs have caused undue delays in the prosecution of this case
and have furthermore failed to comply with orders of this court.
III.
CONCLUSION
Accordingly,
IT IS RECOMMENDED that pursuant to the court’s sanctioning authority, this matter be
DISMISSED WITHOUT PREJUDICE for plaintiffs’ failure to prosecute and abide by the
orders of the court, and that the judgment provide that this civil action may be reinstated within 30
days for good cause shown, per W.D. La. Loc. Civ. R. 41.3, with any such showing to be made in
writing and filed into the record of this matter.
IT IS FURTHER RECOMMENDED that, should the District Court accept the
aforementioned recommendation, then the Ex Parte Motion to Lift Stay and for Recommendation
of Dismissal Without Prejudice [Doc. 77] filed by defendant Brown & Brown of Louisiana, LLC
be DENIED AS MOOT.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil
Procedure, the parties have fourteen (14) days from receipt of this Report and Recommendation to
file written objections with the Clerk of Court. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy thereof. Failure to file written objections
to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and
Recommendation within fourteen (14) days of receipt shall bar an aggrieved party from attacking
either the factual findings or the legal conclusions accepted by the District Court, except upon
grounds of plain error. See Douglass v. United Services Automobile Ass ’n, 79 F.3d 1415, 1429-30
(Sth Cir. 1996).
THUS DONE AND SIGNED in Chambers this 21st day of August, 2024.
UNITED STTES MAGISTRATE JUDGE