BARBARA LYNN, District Judge
On January 12,2001, Plaintiffs Anastacia Johnson ("Anastacia"), by and through her father, George Cobbs ("Cobbs"), and Cobbs individually, brought a wrongful death and survival product liability action against Ford Motor Company, claiming Ford negligently designed and/or manufactured the rear window of its Lincoln Town Car.
In its December 28, 2001 Memorandum Order, the Court directed Plaintiffs to advise the Court, in a sworn affidavit, filed on or before January 14, 2002, of the status of the administration of the Estate of Deloris Marie Johnson, any requests made to the executor or administrator regarding the prosecution of these claims, and the legal relationship, if any, between Cobbs and the decedent. No such affidavit was filed.
On January 16, 2002, two days after directed to advise the Court by affidavit, Plaintiffs filed an Interim Response to the Court's Order of December 28,2001. The Response largely ignores the Court's concerns as set out fully in its December 28, 2001 Memorandum Order. On January 17, 2002, Plaintiffs filed a Notice of Filing of Cobbs' Affidavit and Paternity Order, appending Cobbs' requested affidavit.
On January 22, 2002, Plaintiffs also filed Plaintiffs' Response to Motion to Dismiss and Sanctions, requesting the Court to deny Defendant's Motion to Dismiss and grant Plaintiffs leave to conduct a two-hour deposition of a Ford engineer. Plaintiffs' counsel states, among other things, that he "is filing a formal complaint with supporting documents with general counsel for Ford with a demand that if counsel's health becomes a factor in the dismissal of this case, Ford will be sued as part of the bigger suit being filed [against the `intemperate Texas judiciary'] in the District of Columbia." The Court looks with disfavor on the use of the judicial system as a combative tool trivialized through baseless mud-slinging and finds nothing in Defendant's briefing to warrant sanction.
The Court specifically asked Plaintiffs to provide information on the status of the administration of the Estate of Deloris Marie Johnson, any requests made to the executor or administrator regarding prosecution of these claims, and the legal relationship, if any, between George Cobbs and the decedent so that the Court could ascertain whether Cobbs had the capacity to bring a claim under the Texas Wrongful Death Act as a "covered person" or the Texas Survival Statute as either an heir or a legal representative of the decedent, and whether the case was properly pled and postured such that Anastacia, the daughter of Deloris Marie Johnson, could bring a wrongful death or survival claim.
Ford contends that Cobbs is not a beneficiary under the Texas Wrongful Death Act because he was never married to the deceased. Upon consideration of the Plaintiffs' Interim Response, which does not comply with the Court's order, and Cobbs' affidavit, the Court finds that Cobbs does not and cannot meet the necessary pleading requirements and DISMISSES his claims with prejudice.
As to Anastacia, Plaintiffs misinterpret the Court's request. The Court merely sought to provide Plaintiffs an opportunity to properly plead and prove the estate requirements under TEX. CIV. PRAC. REM. CODE § 71.004(c) (Vernon 1997). Plaintiffs state, in their late filed Interim Response, that Plaintiffs' counsel has spoken with "Becky Helms, Docket Coordinator for a Dallas Probate Judge Deshazo" and that there is no record of a probate being filed for the decedent. That single compliant statement in the Plaintiffs' six-page Interim Response causes the Court to pause in assessing the dismissal of Anastacia's claims.
Plaintiffs cite to two cases for the proposition that the Court and Defendant's concerns were "without basis." The Court in Cavnar v. Quality Control Parking, 696 S.W.2d 549, 551 (Tex. 1995), rev'd on other grounds, Johnson Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507 (Tex. 1998), found that "covered" children suing under the Texas Wrongful Death Act could recover for the loss of companionship and mental anguish suffered by the death of their parent. The Court does not dispute that if Anastacia were to properly plead and prove the estate requirements of TEX. CIV. PRAC. REM. CODE § 71.004(c) (Vernon 1997), and succeed in her substantive claims against Ford, she would be entitled to the damages at issue in Cavnar. The Court in Enciso v. Chmielewski, 16 S.W.3d 858, 860 (Tex.App.-Houston [14th Dist.] 2000, no pet.), held that the two-year wrongful death limitations period under TEX. CIV. PRAC. REM. CODE § 16.003(b) (Vernon Supp. 2000) should be tolled for a minor under TEX. CIV. PRAC. REM. CODE § 16.001(b) (Vernon Supp. 2000). However, in Enciso, unlike the case before the Court, the minor child plaintiff was represented by the administrator of the estate. In this instance, the problem arises from the Plaintiffs' failure to properly plead and prove the estate requirements. As stated in Cobbs' affidavit, Deloris Johnson leaves adult children and parents; pleading and proving the estate requirements is thus significant beyond the mere statutory exercise.
The Supreme Court has placed its imprimatur on the sanction of dismissal with prejudice, stating that "the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases." Because a dismissal with prejudice is an extreme sanction, the Fifth Circuit has clearly delineated when such a measure will be upheld. The decision will be upheld where: (1) there is a clear record of delay or contumacious conduct by the plaintiff(s), and (2) the district court has expressly determined that lesser sanctions would not prompt diligent prosecutions, or the record shows that the district court employed lesser sanctions that proved to be futile.
National Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976) (per curiam). FED. R. Civ. P. 41(b) (West 2001) authorizes involuntary dismissals for "failure of the plaintiff to prosecute or to comply with these [Federal Rules of Civil Procedure] or any order of court."
Callip v. Harris Country Child Welfare Dept., 757 F.2d 1513, 1517 (5th Cir. 1985).
Id. The Court also requires the presence of at least one of three aggravating factors in failure to prosecute cases: "(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct." Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
Defendant correctly itemizes the Plaintiffs' litany of missed deadlines. Plaintiffs' counsel provides the Court with a roughly eight page (three in his Interim Response and five in his Response to Motion to Dismiss) excuse for his lackadaisical attitude toward representation in this case. While the Court is sympathetic to counsel's illness, it cannot calibrate its approach to justice with such flippancy. Since Plaintiffs' January 2001 filing date, they have not served interrogatories, requests for admission, or deposition notices, nor have they met the August 31, 2201 joinder deadline, November 3, 2001 expert designation deadline, or December 10, 2001 summary judgment response deadline. Further, Plaintiffs' affirmative disregard for the Court's orders is manifest.
As set out in the Court's January 9, 2002 Order striking Plaintiffs' Interim Response and Motion to Join, wherein the Court stated that it "frown[ed] upon the Plaintiffs' proclivity for missing Court deadlines," Plaintiffs have sat by as the August 31, 2201 joinder deadline, November 3, 2001 expert designation deadline, December 10, 2001 summary judgment response deadline, and January 14, 2002 affidavit deadline expired.
However, the Court is sensitive to Anastacia's plight as a minor. Among considerations for analyzing a dismissal with prejudice is if the defendant would suffer some cognizable prejudice if the claims were not dismissed with prejudice. Here, Defendant raises cognizable prejudice related to "more than $40,000 in defense fees and costs," for a suit that Plaintiffs have largely ignored for a year, and vulnerability to subsequent litigation based on claims asserted in this case as justifications for a dismissal with prejudice. Although the Court is unimpressed by Plaintiffs' cavalier approach to this case, it does not find "some plain legal prejudice other than the mere prospect of a second lawsuit" that would result from a dismissal without prejudice as to Anastacia's claims. "Dismissals with prejudice are reserved for the most egregious of cases." The Court finds dismissal without prejudice as to Anastacia's claims is a just result.
Davis v. Huskipower Outdoor Equipment Corp., 936 F.2d 193, 198-99 (5th Cir. 1991).
Boudwin v. Graystone Ins. Co., 756 F.2d 399, 401 (5th Cir. 1985).
See Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967) (reversing dismissal with prejudice where movant did not demonstrate "some plain legal prejudice other than the mere prospect of a second lawsuit").
This case is therefore DISMISSED with prejudice to the claims of George Cobbs and without prejudice to the claims of Anastacia Johnson.
SO ORDERED.
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