Mino v. Select Portfolio Servicing Inc, 3:16-cv-02661

Plaintiff Byron Mino filed suit in state court on Sept. 6, 2016, to stop foreclosure; defendants removed to federal court on diversity grounds.
Court entered a scheduling order with an August 31, 2017 discovery deadline; defendants sought and received multiple extensions because Mino failed to provide discovery responses or deposition dates.
Defendants repeatedly attempted to meet and confer; plaintiff’s counsel was unresponsive or unavailable and failed to produce requested materials (including an audio recording relied upon by plaintiff).
Defendants moved to compel discovery and, after plaintiff failed to respond, moved under Rule 41(b) to dismiss for failure to prosecute; the court set an April 11, 2018 hearing and ordered a response by April 6, 2018.
Plaintiff and his counsel neither filed the required response nor appeared at the hearing; the court found a pattern of contumacious conduct, noting a prior substantially similar case dismissed for failure to prosecute.
Magistrate Judge Rutherford recommended granting dismissal with prejudice, concluding lesser sanctions had been tried or were unlikely to succeed and that defendants suffered actual prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal under Fed. R. Civ. P. 41(b) is warranted for failure to prosecute	Mino did not present responsive filings or appear and therefore offered no defense to dismissal	Defendants argued Mino repeatedly failed to respond to discovery, ignored court orders, and prevented case progress	Court recommended dismissal under Rule 41(b) for failure to prosecute
Whether dismissal should be with prejudice	Implicitly: the case merits continued adjudication if given another chance (no filing made)	Defendants: plaintiff’s repeated, prior pattern of neglect shows dismissal with prejudice is appropriate; defendants are prejudiced	Court recommended dismissal with prejudice due to contumacious conduct and prior similar dismissal
Whether lesser sanctions should precede dismissal	No substantive opposition filed to propose or accept lesser sanctions	Defendants argued prior dismissal and continued unresponsiveness make lesser sanctions futile	Court concluded lesser sanctions were insufficient and dismissal with prejudice appropriate
Whether defendants suffered prejudice from plaintiff’s conduct	N/A (plaintiff did not meaningfully oppose)	Defendants: inability to collect debt or proceed against collateral due to plaintiff’s delay constitutes prejudice	Court found actual prejudice supporting dismissal

Link v. Wabash R.R. Co., 370 U.S. 626 (1962) (courts have inherent power to control their dockets and dismiss for prosecution failures)
McCullough v. Lynaugh, 835 F.2d 1126 (5th Cir. 1988) (district court may sua sponte dismiss under Rule 41(b))
Boudwin v. Graystone Ins. Co., 756 F.2d 399 (5th Cir. 1985) (dismissal authority flows from inherent docket-control power)
Long v. Simmons, 77 F.3d 878 (5th Cir. 1996) (dismissal with prejudice requires purposeful delay/contumaciousness and consideration of lesser sanctions)
Burden v. Yates, 644 F.2d 503 (5th Cir.) (discusses sanctions and dismissal considerations)
Thomas v. Arn, 474 U.S. 140 (1985) (procedures and consequences for objections to magistrate judge recommendations)
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (failure to timely object to magistrate findings bars de novo review and limits appeal)