Gwendolyn Wright v. LBA Hospitality ( 2019 )

Case: 18-20472 Document: 00514849355 Page: 1 Date Filed: 02/25/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-20472 February 25, 2019
Summary Calendar
Lyle W. Cayce
Clerk
GWENDOLYN P. WRIGHT,
Plaintiff - Appellant
v.
LBA HOSPITALITY; LBAM INVESTOR GROUP, L.L.C.; APPLE
HOSPITALITY REIT, INCORPORATED; FARRAH ADAMS; PHILIP
BARROCAS; MARY EWING; MARSHA CANON; BARBARA ISRAEL;
MARRIOTT INTERNATIONAL, INCORPORATED; COURTYARD
MANAGEMENT CORPORATION; MARRIOTT WORLDWIDE
RESERVATION SERVICES, L.L.C.; MIF, L.L.C.; MARRIOTT
INTERNATIONAL, INCORPORATED HOST MARRIOTT CORPORATION,
formerly known as Marriott Corporation, "Host Marriott"; MARRIOTT
INTERNATIONAL, INCORPORATED ("MII"); HOST MARRIOTT
SERVICES CORPORATION; HOST MARRIOTT CORPORATION ("HOST
REIT"); CTYD III CORPORATION, COURTYARD BY MARRIOTT; LARRY
BLUMBERG AND ASSOCIATES, INCORPORATED; LBAM-JALARAM,
L.L.C.; LBAM-VRAMA, L.L.C.; LBAM-KEY, L.L.C.; LBAM-3H, L.L.C.;
APPLE REIT COMPANIES; LARRY BLUMBERG; ELIZABETH B.
GLASCOW,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC 4:17-CV-1838
Case: 18-20472 Document: 00514849355 Page: 2 Date Filed: 02/25/2019
No. 18-20472
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
Gwendolyn Wright, proceeding pro se, appeals the dismissal of her
lawsuit for failure to comply with the district court’s order to file written proof
of service of her amended complaint. We AFFIRM.
Federal Rule of Civil Procedure 41(b) states that “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).
“The standard of review for a Rule 41(b) dismissal is whether the district court
abused its discretion in dismissing the action.” McCullough v. Lynaugh, 835
F.2d 1126, 1127 (5th Cir. 1988).
When “‘the dismissal is without prejudice but the applicable statute of
limitations probably bars future litigation,’ our examination is searching, and
we review the dismissal as we would a dismissal with prejudice.” Nottingham,
837 F.3d at 441 (quoting Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir.
2014)). There is probably a bar applicable to Wright’s suit. While she has not
raised the issue of limitations, we note that she obtained a right to sue letter
from the EEOC and was required to bring her claims under the Americans
with Disabilities Act within 90 days of receiving that letter. 1 Taylor v. Books
A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002).
“Lesser sanctions such as fines or dismissal without prejudice are
usually appropriate before dismissing with prejudice.” Bryson v. United
States, 553 F.3d 402, 403 (5th Cir. 2008) (citing Long v. Simmons, 77 F.3d 878,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
1 At the same time, the letter was dated March 7, 2017 and her initial complaint was
not filed until June 12, 2017, a total of 97 days later. Thus, if she is barred by limitations, it
is not necessarily a consequence of the dismissal.
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No. 18-20472
880 (5th Cir.1996)). A Rule 41(b) dismissal that is effectively with prejudice is
appropriate, though, where there is a “clear record of delay or contumacious
conduct by the 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) (ellipsis in original)).
The district court extended some leniency to Wright, as is proper with a
pro se plaintiff. Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 1991). One week
after Wright filed her initial complaint, which sought over $17 million in
damages, the court granted her application to proceed in forma pauperis. The
district court clerk provided this advice:
It is your responsibility to prepare and have one summons
issued for each of the defendants named in your complaint
pursuant to Fed. R. Civ. P. 4. You are also responsible for service
of the summons and complaint unless otherwise ordered by the
court. If you do not have summons issued and served within 90
days of the filing of your complaint, the court may dismiss it,
ending your case.
The court issued summons and delivered them to the United States
Marshal for service on all nine initial defendants at the sole address provided
by Wright. Even as many of them were returned to the U.S. Marshal’s office
unserved, Wright proceeded to file motions seeking increasingly extreme
amounts of money. Over four months she filed five motions for summary or
default judgment, and her initial $17 million demand grew to $32 million, then
to $88 million, and finally to more than $90 million.
On March 21, 2018, the court gave Wright the opportunity to amend her
complaint within 21 days to avoid dismissal of the sole defendant who had
responded to her complaint. Only after she failed to do so was that defendant
dismissed from the case on April 12, 2018. Shortly afterward, on April 23,
Wright filed an amended complaint she titled the “Fourth Supplemental
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Petition,” which persisted in naming the recently dismissed party as a
defendant.
On June 14, 2018, the court found that Wright had failed to serve the
amended complaint on more than two dozen named defendants. It ordered her
to do so within 10 days and to file proof of such service within 14 days. The
court warned Wright that failure to comply would result in dismissal. Wright
failed to file anything at all. On July 2, 2018, the district court dismissed her
complaint without prejudice for failure to comply with a court order.
The district court did not abuse its discretion by the dismissal. “The
right of self-representation does not exempt a party from compliance with
relevant rules of procedural and substantive law.” Hulsey, 929 F.2d at 171
(quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)). The district court
had warned Wright of the consequences and “allowed [her] a second chance at
obtaining service.” Wright disregarded that clear and reasonable order.
AFFIRMED.
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