United States District Court, N.D. Mississippi, Greenville Division
M. BROWN UNITED STATES DISTRICT JUDGE.
August 12, 2019, Michael Harris' attorney filed a motion
to withdraw as Harris' counsel. Doc. #27. On August 30,
2019, United States Magistrate Judge Jane M. Virden issued an
order granting the motion on the condition that Harris'
attorney file a certificate of service showing service of the
order granting withdrawal on Harris at his last known mailing
address. Doc. #30. In the same order, Judge Virden stayed
this case until September 30, 2019, and ordered that
“[b]efore the expiration of this date, either new
counsel for Plaintiff shall file a notice of entry of
appearance or Plaintiff shall notify the Court in writing of
his intent to proceed pro se.” Id. at
1. The order further warned that failure to comply with this
directive “may result in dismissal of this case for
failure to obey an order of the Court and/or failure to
prosecute.” Id. at 1-2. On September 4, 2019,
Harris' former attorney mailed a copy of the order to
Harris' last known address. Doc. #31.
October 2, 2019, Judge Virden, noting that no attorney
entered an appearance on Harris' behalf and that Harris
had failed to notify the Court that he was proceeding pro se,
lifted the stay and directed Harris to show cause in writing
on or before October 16, 2019, why his claims should not be
dismissed. Doc. #32. A copy of this order was mailed to
Harris at his last known mailing address. To date, Harris has
not responded to the order to show cause or otherwise
complied with Judge Virden's August 30 order.
Federal Rule of Civil Procedure Rule 41(b), “a district
court may dismiss an action sua sponte if the plaintiff fails
to comply with court orders.” Nottingham v. Warden,
Bill Clements Unit, 837 F.3d 438, 440 (5th Cir. 2016).
To dismiss a claim with prejudice under Rule 41(b), there
must be at least (1) “a clear record of delay or
contumacious conduct by the plaintiff, ” and (2) a
finding “that lesser sanctions would not prompt
diligent prosecution” or a record showing “that
the district court employed lesser sanctions that proved to
be futile.” Tello v. Comm'r of Internal
Revenue, 410 F.3d 743, 744 (5th Cir. 2005).
“Lesser sanctions include assessments of fines, costs,
or damages against the plaintiff[, ] conditional dismissal,
dismissal without prejudice, and explicit warnings.”
In re Deepwater Horizon, 907 F.3d 232, 236 (5th Cir.
2018) (citation omitted; internal quotation marks omitted). A
court should employ lesser sanctions when they would
“serve the best interests of justice.”
where a plaintiff has failed only to comply with a few court
orders or rules, ” there is no clear record of delay or
contumacious conduct by the plaintiff. Berry v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 n.6 (5th Cir.
1992). Thus, Harris' conduct to date does not warrant a
dismissal with prejudice. See Morgan v. Americas Ins.
Co., 759 Fed.Appx. 255, 258 (5th Cir. 2019) (“Even
if Morgan clearly violated both orders, more is required for
a dismissal with prejudice.”). Where, as here, a pro se
plaintiff has clearly violated two court orders, courts have
determined a proper sanction to be dismissal without
prejudice. See Grimaldo v. Aurora Loan Servs., LLC,
No. 3:12-cv-4158, 2013 WL 1187153, at *2 (N.D. Tex. Feb. 27,
2013) (collecting cases). However, standing alone, dismissal
without prejudice is generally a “feeble” remedy.
Lucien v. Breweur, 9 F.3d 26, 28 (7th Cir. 1993).
Thus, to properly serve the best interests of justice, a
court may also consider a “conditional dismissal”
Lewis v. Sheriff's Dep't Bossier Parish, 478
Fed.Appx. 809, 818 (5th Cir. 2012) (quoting Rogers v.
Kroger Co., 669 F.2d 317, 317 (5th Cir. 1982)); see
also 9 Fed. Prac. & Proc. Civ. § 2372 (3d ed.)
(“Conditions may be imposed on an order of involuntary
Harris' conduct does not justify dismissal with
prejudice, the Court concludes that Harris' clear
violation of two court orders and ongoing refusal to come
into compliance justifies a dismissal without
prejudice. The Court further concludes that the best
interests of justice require the imposition of certain
conditions to prevent prejudice to the defendant should the
case be re-filed. Accordingly, this case is DISMISSED
without prejudice with the conditions that (1)
should Harris re-file this action against Kroger, any
discovery in this case be usable in the subsequent action;
and (2) upon re-filing, Kroger may seek from Harris its
reasonable attorney's fees for work and resources
expended in this litigation which cannot “be easily
carried over” to the subsequent
litigation. A final judgment consistent with this
opinion will issue separately.
 A dismissal without prejudice is
functionally with prejudice when re-filing the claim would be
barred by the applicable statute of limitations. Sealed
Appellant v. Sealed Appellee, 452 F.3d 415, 417 (5th
Cir. 2006). Because Harris has asserted claims for negligence
arising from an April 5, 2017, incident, the statute of
limitations will not bar a subsequent action. See Jenkins
v. Pensacola Health Tr., Inc., 933 So.2d 923, 926 (Miss.
2006) (Mississippi has three-year statute of limitations for
See Davis v. USX Corp., 819
F.2d 1270, 1276 (4th Cir. 1987) (district court abused its
discretion in conditioning dismissal on payment of subsequent
fees where work would “be easily ...