Booth v. GeoVera Specialty Insurance Company

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALONZO BOOTH AND MILDRED
BOOTH
CIVIL ACTION
VERSUS 	NO. 23-4136
GEOVERA SPECIALTY INSURANCE
COMPANY
SECTION “R” (2)
ORDER AND REASONS
Defendant GeoVera Specialty Insurance Company (“GeoVera”) moves
to dismiss the case under Federal Rule of Civil Procedure 41(b) for plaintiffs’
failure to comply with this Court’s Order. 1 	Plaintiffs did not respond to the
motion or the Court’s order mandating response to the motion. 2 	For the
following reasons, the Court grants Defendant’s motion and dismisses
Plaintiffs’ case with prejudice.
I. 	BACKGROUND
In August 2023, the Booths sued GeoVera for damages allegedly
arising from Hurricane Ida.3 	Under the Case Management Order for
Hurricane 	Ida 	claims 	in 	this 	District, 	the 	case 	proceeded 	through 	a
1 	R. Doc. 38.
2 	R. Doc. 39.
3 	R. Doc. 1 at 2-3.
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Streamlined Settlement Program. 4 As part of that program, the matter went
to mediation twice, and the Booths failed to meaningfully participate in
either mediation.5 	GeoVera then moved to dismiss the case for plaintiffs’
failure to participate, and the Court denied the motion and ordered the
parties to again attend a mediation. 6
At the third mediation on February 19, 2025, the Booths appeared but
did not participate in the mediation. 	Magistrate Judge Donna Phillips
Currault held a settlement conference with the parties, and the Booths did
not participate. The case then returned to this Court’s active docket.
GeoVera then propounded written Interrogatories and Requests for
Production of Documents upon the Booths. 	Neither the Booths nor their
counsel attended the Rule 37 Discovery Conference or responded to the
discovery requests. 	GeoVera moved to compel plaintiffs’ responses to
discovery. 7 	Plaintiffs did not respond to the motion to compel, which the
Court granted. 8
On the required date, the Booths responded to the discovery requests.
But, the Booths did not provide a “full and complete” response to the
4 	R. Doc. 9 at 1-2.
5 	R. Doc. 15-1, at 2-3.
6 	R. Doc. 18.
7 	R. Doc. 32.
8 	R. Doc. 33.
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discovery request as the order required. 	Their response to nearly every
request 	was 	either 	a 	reference 	to 	their 	complaint 	or 	“Plaintiffs 	will
supplement as additional information becomes available.” 9
Plaintiffs’ 	counsel 	then 	withdrew. 10 	Plaintiffs’ 	counsel 	cited 	to
unresolvable conflicts, including that plaintiffs “are unwilling to fully assist
in preparing the case, have already skipped scheduled mediation and make
communication unnecessarily difficult.” 11
After that, GeoVera has contacted plaintiffs directly. Plaintiffs did not
respond 	to 	GeoVera’s 	attempts 	to 	contact 	them 	for 	further 	discovery
responses, nor did they attend the second scheduled Rule 37 Discovery
Conference.12
GeoVera now moves to dismiss this case under Federal Rule of Civil
Procedure 41(b) for plaintiffs’ failure to comply with this Court’s orders,
including the Case Management Orders, the order to participate in the
mediation, and the order compelling discovery. 13 Plaintiffs did not respond
to GeoVera’s motion. 	The Court then issued a show cause order, ordering
9 	R. Doc. 38.
10 	This was the second attorney to withdraw from the Booth’s case. The
first withdrew because he was suspended from the practice of law. R.
Doc. 30.
11 	R. Doc. 35.
12 	R. Doc. 38.
13 	R. Doc. 38.
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the plaintiffs to show cause why the Court should not grant defendant’s
motion and dismiss plaintiffs’ claims with prejudice. 14 	Plaintiffs did not
respond.
The Court considers the motion below.
II. 	LEGAL STANDARD
Federal Rule of Civil Procedure 41(b) provides that “[i]f the plaintiff
fails to prosecute or to comply with these rules or a court order, a defendant
may move to dismiss the action or any claim against it.” Dismissal with
prejudice for failure to comply with a court order should be a last resort, and
“[l]esser sanctions such as fines or dismissal without prejudice are usually
appropriate.” Bryson v. United States, 553 F.3d 402, 403 (5th Cir. 2008);
see also 	Rogers v. Kroger Co., 669 F.2d 317, 321-22 (5th Cir. 1982)
(“Assessments of fines, costs, or damages against the plaintiff or his counsel,
attorney disciplinary measures, conditional dismissal, dismissal without
prejudice, and explicit warnings are preliminary means or less severe
sanctions . . . .”).
Therefore, dismissal with prejudice under Rule 41(b) is appropriate
only “where there is a ‘clear record of delay or contumacious conduct by the
14 	R. Doc. 39.
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plaintiff . . . and when lesser sanctions would not serve the best interests of
justice.’” Id. (quoting Callip v. Harris Cnty. Child Welfare Dep't, 757 F.2d
1513, 1521 (5th Cir. 1985)). 	A clear record of delay exists when there have
been “significant periods of total inactivity.” Shaw v. The United Mexican
States, No. 23-40422, 2024 WL 1113013, at *2 (5th Cir. Mar. 14, 2024) (per
curiam) (citation and internal quotation marks omitted). Before sanctioning
a party via dismissal with prejudice, the district court must expressly
determine that “lesser sanctions would not prompt diligent prosecution,” or
the record must show that the district court “employed lesser sanctions that
proved to be futile.” 	Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th
Cir. 1992)). Typically, one of three aggravating factors must be present: “(1)
delay caused by the plaintiff [herself] and not [her] attorney; (2) actual
prejudice to the defendant; or (3) delay caused by intentional conduct.”
Campbell v. Wilkinson, 988 F.3d 798, 802 (5th Cir. 2021) (quoting Berry,
975 F.2d at 1191).
III. 	DISCUSSION
Plaintiffs have failed to comply with multiple court orders, and thus
action under Fed. R. Civ. P. 41(b) is appropriate. The remaining question is
whether the remedy of dismissal with prejudice is appropriate.
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The Court finds that it is. 	There is a clear record of delay and
contumacious 	conduct 	by 	the 	plaintiff. 	Plaintiffs 	have 	had 	repeated
opportunities 	to 	meaningfully 	prosecute 	this 	case, 	including 	through
mediations, a magistrate-judge settlement conference, and by making their
initial 	disclosures 	and 	responding 	to 	defendant’s 	discovery 	requests.
Plaintiffs have failed to do so. Further, all three aggravating circumstances
are present. The Booths caused the delay, not their attorneys. The delay has
resulted in actual prejudice to GeoVera; the defendant has repeatedly tried
to resolve this litigation over the past four years. 	The Booths have
intentionally refused to participate in the various mediations, settlement
conferences, and discovery, and have entered nothing in the record since
November 4 th, 2024.
As to whether lesser sanctions would be appropriate, the record shows
that they would not. First, the Court has already employed lesser sanctions,
which proved “to be futile.” Berry, 975 F.2d at 1191. The Court denied one
motion to dismiss on these grounds and ordered the Booths to meaningfully
participate in another mediation, which they failed to do. The Booths failed
to respond to a motion to compel and failed to respond to this motion to
dismiss. 15 	The Court issued a show cause order after the Booths failed to
15 	R. Doc. 17.
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respond to this motion, ordering the Booths to show cause for why the Court
should not grant defendant’s motion to dismiss with prejudice. 16 The Booths
did not do so.
Second, 	the 	remaining 	lesser 	sanctions 	are 	largely 	inapplicable.
Dismissal without prejudice would function as dismissal with prejudice,
because the statute of limitations has run on the Booths’ claim. The plaintiffs
are now pro se, so attorney disciplinary or financial sanctions are inapposite.
The Court finds that given the clear record of contumacious conduct and
delay in this case and the futility of the Court’s previous applications of lesser
sanctions, dismissal with prejudice under Fed. R. Civ. P. 41(b) is appropriate.
IV. 	CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion to
dismiss. The Court DISMISSES plaintiffs’ claims WITH PREJUDICE under
Fed. R. Civ. P. 41(b).
New Orleans, Louisiana, this _____ day of January, 2026.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
16 	R. Doc. 39.
16th
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