Petition for Writ of Certiorari — Wingrove Robinson, Petitioner v. Raintree Tower Apartments, et al.

Supreme Court briefMay 17, 2019

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Case: 18-41192

Document: 00514807867

Page: 1

Date Filed: 01/24/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-41192

WINGROVE ROBINSON,

Plaintiff - Appellant

A True Copy

Certified order issued Jan 24, 2019

W. 0(*ut*

Clerk, U.S. Court of Ap peals, Fifth Circuit

RAINTREE TOWER APARTMENTS; RITA SMITH, Manager of Raintree

Tower Apartments; CAROLYN WEST, Deceased; KATY BARRILLEAU,

Senior V.P., Raintree Apartments,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Texas

Before OWEN, HO, and DUNCAN, Circuit Judges.

PER CURIAM:

This court must examine the basis of its jurisdiction, on its own motion

if necessary. Hill v. City of Seven Points, 230 F.3d 167, 169 (5th Cir. 2000).

Pursuant to 28 U.S.C. § 2107(a) and Federal Rule of Appellate Procedure

4(a)(1)(A), the notice of appeal in a civil case must be filed within thirty days

of entry of judgment. In this civil rights action, the district court entered final

judgment dismissing the complaint on November 1, 2018. Therefore, the final

day for filing a timely notice of appeal was Monday, December 3, 2018, because

the thirtieth day was a Saturday.

See FED. R. APP. P. 26(a)(1)(C).

plaintiffs notice of appeal was filed on December 26, 2018.

The

When set by

Case: 18-41192

Document: 00514807867

Page: 2

Date Filed: 01/24/2019

No. 18-41192

statute, the time limitation for filing a notice of appeal in a civil case is

jurisdictional. Hamer v. Neighborhood Hous. Serus. of Chi., 138 S. Ct. 13, 17

(2017); Bowles v. Russell, 551 U.S. 205, 214 (2007). The lack of a timely notice

mandates dismissal of the appeal. Robbins v. Maggio, 750 F.2d 405, 408 (5th

Cir. 1985).

Case l:16-cv-00500-MAC-ZJH Document 22 Filed 05/15/17 Page 1 of 3 PagelD #: 137

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

WINGROVE ROBINSON,

Plaintiff,

RAINTREE TOWER APTS., et al.,

Defendants.

CIVIL ACTION NO. 1:16-CV-500

REPORT AND RECCOMMENDATION

DISMISSING CASE FOR FAILURE TO PROSECUTE

This case is assigned to the Honorable Marcia Crone, United States District Judge, and is

referred to United States Magistrate Judge Zack Hawthorn for pretrial management pursuant to

General Order 05-07. On April 12, 2017, Judge Hawthorn issued an order, per Plaintiff Wingrove

Robinson’s request (Doc. No. 14), extending the deadline for the parties to conduct a Rule 26(f)

conference to April 26, 2017, as well as postponing the parties’ Rule 16 case management

conference to May 12, 2017. Doc. No. 16. Robinson did not comply with the court order to

conduct the Rule 26(f) conference, nor did he appear at the May 12, 2017 case management

conference. Accordingly, this case should be dismissed for failure to prosecute pursuant to Federal

Rule of Civil Procedure 41(b).

Federal Rule of Civil Procedure 41(b) authorizes the district court to dismiss an action sua

sponte for failure to prosecute or for failure to comply with any court order. Larson v. Scott, 157

F.3d 1030, 1031 (5th Cir. 1998). “This authority flows from the court’s inherent power to control

its docket and prevent undue delays in the disposition of pending cases.” Boudwin v. Graystone

Ins. Co., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 629

Case l:16-cv-00500-MAC-ZJH Document 22 Filed 05/15/17 Page 2 of 3 Page ID #: 138

(1962)). The court’s authority to issue this type of 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.” Id. at 629-30 (1962); see also Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997),

cert, denied, 522 U.S. 875 (1997). The court’s authority to dismiss for failure to prosecute is

committed to the sound discretion of the court. Green v. Forney Eng’g Co., 589 F.2d 243, 247-48

(5th Cir. 1979).

Robinson was properly served with the court’s order to conduct a Rule 26(f) attorney

conference and appear before the undersigned for a case management conference, but has failed

to comply. In the interest of judicial economy, his case should be DIMISSED without prejudice

for failure to prosecute and failure to comply with a court order.

OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1)(c) (Supp. IV 2011), each party to this action has the right

to file objections to this report and recommendation. Objections to this report must (1) be in

writing, (2) specifically identify those findings or recommendations to which the party objects, (3)

be served and filed within fourteen days after being served with a copy of this report; and (4) be

no more than eight pages in length. See 28 U.S.C. § 636(b)(1)(c); Fed. R. Civ. P. 72(b)(2); Local

Rule CV-72(c). A party who objects to this report is entitled to a de novo determination by the

United States District Judge of those proposed findings and recommendations to which a specific

objection is timely made. See 28 U.S.C. § 636(b)(1)(c); Fed. R. Civ. P. 72(b)(3).

A party’s failure to file specific, written objections to the proposed findings of fact and

conclusions of law contained in this report, within fourteen days of being served with a copy of

this report, bars that party from: (1) entitlement to de novo review by the United States District

Judge of the findings of fact and conclusions of law, see Rodriguez v. Bowen, 857 F.2d 275, 276-

Case l:16-cv-00500-MAC-ZJH Document 22 Filed 05/15/17 Page 3 of 3 Page ID #: 139

77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of any such findings

of fact and conclusions of law accepted by the United States District Judge. See Douglass v. United

Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).

SIGNED this 15th day of May, 2017.

Zack Hawthorn

United States Magistrate Judge

Case l:16-cv-00500-MAC-ZJH Document 25 Filed 06/18/17 Page 1 of 2 PagelD #: 166

EASTERN DISTRICT OF TEXAS

UNITED STATES DISTRICT COURT

WINGROVE ROBINSON

Plaintiff,

RAINTREE TOWER APARTMENTS,

et al.,

Defendants.

CIVIL ACTION NO. l:16-cv-500

ORDER ADOPTING REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

The court has received and considered the report and recommendation (Doc. No. 22) of

the magistrate judge, which recommends that the court dismiss Plaintiff Wingrove Robinson’s

complaint for failure to prosecute and failure to comply with a court order.

Specifically,

Robinson failed to conduct the mandatory Rule 26(f) attorney conference with opposing counsel,

and did not appear before the magistrate judge for a case management conference, as ordered.

The court has reviewed Robinson’s “Motion for Reconsideration for Non-Dispositive

Matters” (Doc. No. 24). Because Robinson is proceeding pro se, the court liberally construes

the motion as an objection to the magistrate judge ’ s report and recommendation. The court finds

that Robinson’s objections do not address either basis for dismissal—failure to prosecute or failure

to comply with a court order—and accordingly concludes that his objections are without merit.

The court’s own de novo review of the report and recommendation finds that the magistrate

judge’s conclusion is correct.

It is, therefore, ORDERED that the magistrate judge’s report and recommendation (Doc.

No. 22) is ADOPTED. Robinson’s complaint is DISMISSED without prejudice, in accordance

Case l:16-cv-00500-MAC-ZJH Document 25 Filed 06/18/17 Page 2 of 2 PagelD #: 167

with Rule 41(b) of the Federal Rules of Civil Procedure. The Clerk of Court is directed to close

this case.

SIGNED at Beaumont, Texas, this 18th day of June, 2017.

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MARCIA A. CRONE

UNITED STATES DISTRICT JUDGE

Case 1:16-CV-00500-MAC-ZJH Document 28 Filed 11/01/17 Page 1 of 3 PagelD #: 194

EASTERN DISTRICT OF TEXAS

UNITED STATES DISTRICT COURT

WINGROVE ROBINSON,

Plaintiff,

RAINTREE TOWER APARTMENTS,

et al.,

Defendants.

CIVIL ACTION NO. 1:16-CV-500

ORDER DENYING MOTIONS TO RECONSIDER

On June 18, 2017, this court entered an Order adopting United States magistrate judge

Zack Hawthorn’s report and recommendation (Doc. No. 22) dismissing this case pursuant to

Fed. R. Civ. P. 41(b). (Doc. No. 25). However, the court did not enter a Final Judgment. On

July 5, 2017, the Plaintiff, Wingrove Robinson, proceeding pro se and in forma pauperis, filed a

“Cause Petition for Writ of Mandamus. ” (Doc. No. 26.) On July 27, 2017, Robinson also filed

a “Motion to Reconsider Denial for Partial Summary Judgment.” (Doc. No. 27).

Both motions are not entirely clear as to the relief Robinson is requesting, but both seem

to rehash Robinson’s underlying complaint concerning the Defendants’ theft of a $27,000 check

Robinson received from FEMA and his dissatisfaction with the state court’s handling of the

identical suit. Because Robinson is proceeding pro se, the court liberally construes both motions

as motions to reconsider this court’s order adopting Judge Hawthorn’s recommendation of

dismissal pursuant to Rule 41(b).

Judge Hawthorn recommended dismissal because Robinson failed to conduct the

mandatory Rule 26(f) conference with opposing counsel, and did not appear before the magistrate

Case l:16-cv-00500-MAC-ZJH Document 28 Filed 11/01/17 Page 2 of 3 PagelD #: 195

judge for a case management conference, as ordered. (Doc. No. 22). As stated previously, this

court adopted that recommendation after considering his “Motion for Reconsideration for

Non-Dispositive Matters” (Doc. No. 24) that was construed as an objection to the report and

recommendation. (Doc. No. 25).

In pertinent part, Robinson claims in the pending “Motion to Reconsider Denial for Partial

Summary Judgment” that Fed. R. Civ. P. 26(f) does not apply to him and Judge Hawthorn’s

order to conduct his Rule 26(f) conference with opposing counsel violates his rights under the

Fourth and Fourteenth Amendments to the United States Constitution. (Doc. No. 27, pp. 2, 4).

Both arguments are without merit. Robinson claims “[mjeet and confer 26(f) does not apply to

me!” (Doc. No. 27, p.2). Robinson is partially correct. The “meet and confer” requirements

in the Local Rules regarding certificates of conference do not apply to pro se litigants. See Loc.

R. CV-7(i). However, Judge Hawthorn recommended dismissal not for the failure to include a

proper certificate of conference, but for failure to conduct a Rule 26(f) conference. Judge

Hawthorn clearly admonished Robinson that this court deems “failures to participate fully in the

Rule 26(f) conference may result in the imposition of sanctions.” (Doc. No. 11, p.3). Even

without legal counsel, pro se litigants are still expected to comply with relevant orders and the

Federal Rules of Civil Procedure. See Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981) (“The

right of self-representation does not exempt a party from compliance with relevant rules of

procedural and substantive law.”)

Moreover, the court cannot find any authority that a

requirement for parties to engage in a Rule 26(f) conference violates a party’s constitutional

rights.

Case l:16-cv-00500-MAC-ZJH Document 28 Filed 11/01/17 Page 3 of 3 PagelD #: 196

For the above stated reasons, Robinson’s “Cause Petition for Writ of Mandamus” (Doc.

26) and “Motion to Reconsider Denial for Partial Summary Judgment” (Doc. No. 27) are

DENIED. A Final Judgment dismissing this case will be entered separately.

SIGNED at Beaumont, Texas, this 31st day of October, 2017.

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MARCIA A. CRONE

UNITED STATES DISTRICT JUDGE

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l CAUSE NO. B-0197319

WINGROVE ROfilNSON,

Plaintiff |

vs.

RAINTREE TOWER APARTMENTS,

Defendant.

J <jc/ AcrtM &t"’U* CVSoa.

IN THE DISTRICT COURT OF

JEFFERSON COUNTY, TEXAS

i,'

60th JUDICIAL DISTRICT

Final Judgment in favor of Defendant

On this day considered Raintree Tower Apartml

mts’ Motion for Summary Judgment

(“Motion") on all Wingrove Robinson’s (“Plaintiff’) claims and causes of action. After considering

the law, the pleadings, the summary judgment evidence, ar d the arguments of counsel, if any, the

Court is of the opinion that the Motion should be granted, as a matter of law. It is, therefore,

ORDERED that Raintree Tower Apartments; Motion for Summary Judgment upon all

Wingrove Robinson’s claims and causes of action is granted and Plaintiff takes nothing by way of

his claims and causes of actioiy which are hereby dismissed,jwith prejudice, from this

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Case: 18-41192

Document: 00514923953

Page: 1

Date Filed: 04/19/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-41192

WINGROVE ROBINSON,

Plaintiff - Appellant

RAINTREE TOWER APARTMENTS; RITA SMITH, Manager of Raintree

Tower Apartments; CAROLYN WEST, Deceased; KATY BARRILLEAU,

Senior V.P., Raintree Apartments,

Defendants - Appellees

Appeal from the United States District Court for the

Eastern District of Texas

Before OWEN, HO, and DUNCAN, Circuit Judges.

PER CURIAM:

IT IS ORDERED that appellant's motion for leave to file out of time a

motion for reconsideration is DENIED.

This panel previously dismissed the appeal for lack of jurisdiction. The

panel has considered appellant's motion for reconsideration. IT IS FURTHER

ORDERED that the motion for reconsideration is DENIED.

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