Diaz v. Fidelity Bank

3:12-cv-00475 | N.D. Tex. | Apr 23, 2012

Case 3:12-cV-OO475-P Document 8 Filed 04/23/12 Page 1 of 3 Page|D 69 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JUAN CARLOS DIAZ § Plaintiff, § VS. § NO. 3-12-CV-0475»P FIDELITY BANK, ET AL. § Defendants. § FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE This case has been referred to the United States magistrate judge for initial screening pursuant to 28 U.S .C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow: I. This is a pro se civil action brought by Juan Carlos Diaz arising out of foreclosure proceedings initiated against his property. On February 15, 2012, plaintiff tendered a complaint to the district clerk and filed an application to proceed informer pauperis Because the information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed. The court then sent Written interrogatories to plaintiff in order to obtain additional information about the factual basis of this suit. Plaintiffwas Warned that the failure to answer the interrogatories Within 20 days "may result in the dismissal of the complaint for failure to prosecute[.]" See Mag. J. Interrog., 2/16/12 at l. When plaintiff failed to respond, the court sent him another set of interrogatories Once again, plaintiff Was warned that the failure to answer the interrogatories Within Case 3:12-cV-OO475-P Document 8 Filed 04/23/12 Page 2 of 3 Page|D 70 20 days "may result in the imposition of sanctions, including dismissal of the action for Want of prosecution.“ See Order, 3/21/12. To date, plaintiff still has not answered the interrogatories The court now determines that this case should be dismissed Without prejudice pursuant to Fed. R. Civ. P. 41(b). lI. A district court has authority to dismiss a case for Want of prosecution or for failure to comply With a court order. FED. R. CIV. P. 4l(b); Larson v. Scon!, 157 F.3d 1030" date_filed="1998-10-26" court="5th Cir." case_name="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 fnsurance Co., 756 F,2d 399, 401 (Sth Cir. 1985), citing Lz'nk v_ Wabash Rar'lroaa' Co., 370 U.S. 626" date_filed="1962-06-25" court="SCOTUS" case_name="Link v. Wabash Railroad">370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Such a dismissal may be with or Without prejudice See Long v. Simmons, 77 F.3d 878" date_filed="1996-03-20" court="5th Cir." case_name="Joseph Long v. Vera Simmons, Lt.">77 F.3d 878, 879- 80 (5th Cir. 1996). A dismissal With prejudice is appropriate only if the failure to comply With the court order Was the result of purposeful delay or contumacious conduct and the imposition of lesser sanctions Would be futile. Ia'. at 880; see also Berry v. CIGNA/RS]-C]GNA, 975 F.2d 1188" date_filed="1992-10-29" court="5th Cir." case_name="Gemeral Earnest Berry, Jr. v. Cigna/rsi-Cigna">975 F.2d 1188, 1191 (5th Cir. 1992). The court sent Written interrogatories to plaintiff more than two months ago. Plaintiff has not answered the interrogatories despite repeated Warnings that his failure to do so Would result in dismissal of the case. The court must obtain additional information about the factual basis of this suit in order to screen the complaint and determine Whether process should be issued to the defendants The inability to proceed With this litigation is directly attributable to plaintiffs failure to provide the information requested Dismissal is clearly Warranted under these circumstancesl See nggz'ns v. Managemenr anal Training Corp. , No. 3-03-CV~1547-L, 2003 WL 22259080 at * 1 (N.D. Case 3:12-cV-OO475-P Document 8 Filed 04/23/12 Page 3 of 3 Page|D 71 Tex. Sept. 25, 2003), rec adopted 2003 WL 22415739 (N.D. Tex. Oct. 20, 2003) (dismissingpro se complaint for failure to answer written interrogatories). MEDM Plaintiff's complaint should be dismissed Without prejudice pursuant to Fed. R. Civ. P. 41 (b).l A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy` See 28 U.S.C. § 63 6(b)(1); FED. R. CIV. P. 72(b). ln order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. UnitedServiceS/lutomobz`leAss 'n, 79 F.3d 1415" date_filed="1996-03-28" court="5th Cir." case_name="Paul W. Douglass v. United Services Automobile Association">79 F.3d 1415, 1417 (Sth Cir. 1996). DATED: April 23, 2012. ' The court notes that another magistrate judge has recommended the dismissal of a nearly identical lawsuit filed by plaintiffas a result ofhis failure to answer interrogatories See Diaz v. Bank ofAmerica, N.A., No. 3-12-CV-0476-G~BK (N.D. Tex. Mar. 30, 2012) (Doc. #7).