This case involves a dispute between Plaintiff Yvonne Sanchez (“Plaintiff”) and Defendant regarding Defendant's foreclosure on a property located at 12030 Sunburst Lane in San Antonio, Texas (the “Property”). See docket no. 1-2. On February 3, 2005, Plaintiff executed a promissory note in the amount of $357,000 on a loan secured by the Property, as well as a Deed of Trust that secured payment on the Note with a lien on the Property. See id. It appears that Plaintiff defaulted on her loan in 2006 and has not made timely payments on the loan since that date. See id. As a result, Defendant provided notice of default and intent to accelerate, and Plaintiff's complaint indicates that Defendant proceeded to repurchase the Property at a public auction. See id.

Plaintiff filed the instant lawsuit in the 288th Judicial District Court of Bexar County, Texas on April 17, 2020. See id. Plaintiff alleges that Defendant's foreclosure was wrongful because the statute of limitations to foreclose had expired. See id. Plaintiff also alleges statutory fraud and requests a declaration that the foreclosure sale is invalid because Defendant's right to foreclose expired on March 12, 2013. See id. Defendant removed the action to this Court on May 5, 2020. See docket no. 1. Plaintiff has not filed a document on the docket since May 26, 2020.

On December 9, 2020, the Court issued an Order granting Defendant's Motion to Compel that had been filed after Plaintiff failed to serve her Rule 26 initial disclosures or respond to Defendant's various discovery requests. See docket no. 11 (the “First Order”). Specifically, the First Order instructed Plaintiff to comply with her discovery obligations within fourteen days.[1] See docket no. 11. The First Order warned Plaintiff that her claims may be dismissed without prejudice for failure to prosecute and/or failure to comply with a court order in the event Plaintiff failed to comply with her discovery obligations in the time period provided. See docket no. 11 pp. 3, 7; Fed. R. Civ. P. 41(b); Fed. R. Civ. P. 37(b)(2)(A)(v).

*2 On December 31, 2020, Defendant filed a Notice of Non-Compliance and Motion to Dismiss in which it informed the Court that Plaintiff had not responded to Defendant's discovery requests or otherwise complied with her discovery obligations in the time period provided by the Court. See docket nos. 12 & 12-1 (the “First Motion”). Defendant's First Motion also requested that the Court dismiss Plaintiff's claims with prejudice, rather than without prejudice as the Court had warned in its First Order. See docket no. 12. Having reviewed Defendant's First Motion, the Court found that Defendant made potentially-meritorious arguments as to why such a remedy might be appropriate in light of Plaintiff's past litigation conduct. See docket no. 14. However, because the Court had previously warned Plaintiff that her claims may be dismissed without prejudice, the Court found it prudent to first provide Plaintiff with an opportunity to explain why dismissal with prejudice would be inappropriate. See id. Thus, the Court determined it was necessary to issue a second show cause order to Plaintiff on January 4, 2021. See docket no. 14 (the “Second Order”). The Second Order provided Plaintiff with fourteen days to respond to Defendant's First Motion and warned “that failure to adequately respond in the timeframe provided may result in dismissal of Plaintiff's claims with prejudice.” See id. (emphasis in original).[2]

Plaintiff did not respond to the Court's Second Order in the timeframe provided. On January 20, 2021—following the expiration of Plaintiff's deadline—Defendant filed a Second Notice of Non-Compliance and Motion to Dismiss. See docket no. 15 (the “Second Motion”). The Second Motion again requests that the Court dismiss Plaintiff's claims with prejudice. See id. Defendant contends that Plaintiff's suit is solely a means of delaying eviction, and as evidence, Defendant notes that Plaintiff (i) has previously filed numerous unsuccessful lawsuits against Defendant related to the same subject-matter and (ii) is extremely likely to do so again in order to delay eviction if the Court elects to dismiss Plaintiff's claims without prejudice. See id.

In the Fifth Circuit, a district court may dismiss a case with prejudice for failure to prosecute when: (1) the plaintiff's conduct establishes a clear record of delay or contumacious conduct, and (2) a lesser sanction would not better serve the best interests of justice. See McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988); Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008).

In this case, the Court finds that both requirements are satisfied, and having reviewed the record, the Court finds that it would be inappropriate for the Court not to dismiss Plaintiff's claims with prejudice. Specifically, the record demonstrates that Plaintiff has previously filed at least three state court lawsuits against Defendant in an attempt to delay the same foreclosure process that is the subject of the present proceedings.[3] Plaintiff has raised many of the same arguments in those cases, and there is no indication that Plaintiff has succeeded on the merits of those lawsuits. In fact, in at least one, it appears that a state district court and court of appeals rejected many of the theories asserted in this action. See note 3, supra. Plaintiff has also previously attempted to avoid foreclosure through bankruptcy proceedings, but those efforts have also been rejected by another district court in this division. See In re Sanchez, No. 5:18-CV-822-DAE, 2018 WL 7377943 (W.D. Tex. Oct. 29, 2018) (providing history of Plaintiff's litigation against Defendant and noting that many of the arguments that are raised in this case have previously been rejected by state district courts and at least one state court of appeals). However, notwithstanding courts' prior rejection of the same arguments, Plaintiff has continued to file new lawsuits, such as this instant action.

*3 Based on Plaintiff's conduct in this litigation, the Court finds that the “delay” and “contumacious conduct” requirement is satisfied. For one, Plaintiff has not filed a single document in this case since May 2020, nor is there any indication Plaintiff has otherwise participated in the litigation. This is not a case in which Plaintiff has merely been negligent or careless in failing to participate in the litigation, see Millan, 546 F.3d at 327, and the Court may have reached a different conclusion with respect to the “delay” and “contumacious conduct” requirement had Plaintiff made any effort to actually pursue her claims in this action and/or attempted to show why her position has merit. But here, Plaintiff's complete failure to (i) comply with her initial discovery obligations, (ii) comply with the Court's order regarding discovery, (iii) respond to the Court's First Order warning of potential dismissal, and/or (iv) respond to the Court's Second Order warning of potential dismissal with prejudice, clearly demonstrate that Plaintiff is merely utilizing the judicial process to delay Defendant's legal remedies without having any legal basis for doing so. Further, Plaintiff's refusal to comply with the Court's orders—on multiple occasions—constitutes “contumacious” conduct and threatens the integrity of the judicial process. Accordingly, the Court finds that the record establishes the delay and contumacious conduct necessary to warrant dismissal with prejudice.

In addition, the Court finds that a lesser sanction would not serve the interests of justice, and instead, a lesser sanction—such as dismissal without prejudice—may in fact frustrate the interests of justice. Based on Plaintiff's litigation history, it is extremely likely that Plaintiff would again file a similar lawsuit intended to delay Defendant's legal remedies in the event Plaintiff's claims are dismissed without prejudice. Plaintiff has been afforded numerous opportunities (both in this case and in others) to explain why her legal arguments have merit, and Plaintiff has failed to do so. Defendant has also been prejudiced by the delay (and Plaintiff's failure to comply with her discovery obligations), as each day that passes makes it more expensive and/or more difficult for Defendant to defend the suit involving Defendant's purported past conduct. Dismissing Plaintiff's claims with prejudice serves the interests of justice, and—in light of Plaintiff's history of repetitive lawsuits and failure to respond to the Court's various orders in this case—the Court finds that no lesser sanction would do so.[4]

To be clear, the Court fully recognizes that dismissal with prejudice is reserved for “egregious and sometimes outrageous delays” that “threaten[ ] the integrity of the judicial process.” See Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982). But Plaintiff's conduct in this action—when considered with her prior litigation history—satisfies that high bar. Thus, having found that the requirements for dismissal with prejudice are satisfied in this case, the Court will order that Plaintiff's claims be dismissed with prejudice for failure to prosecute.

For the reasons set forth above, Plaintiff's claims against Defendant in this lawsuit are hereby DISMISSED WITH PREJUDICE for failure to prosecute and failure to comply with Court orders pursuant to Fed. R. Civ. P. 41(b).

To the extent any other filing in this action may be construed as a formal motion (see, e.g., docket no. 12, docket no. 15), any such motion is DENIED AS MOOT.

The court will issue a separate final judgment, and this case shall be CLOSED.

SIGNED this 25th day of January, 2021.

It is so ORDERED.

The First Order also (i) explained why it appeared that Defendant was entitled to collect $580.00 in fees from Plaintiff's counsel (related to the Motion to Compel) pursuant to Fed. R. Civ. P. 37(a)(5)(A), and (ii) provided Plaintiff's counsel with seven days to show cause as to why it would be inappropriate to award such fees to Defendant. See docket no. 11. The First Order also notified Plaintiff's attorneys (Gregory T. Van Cleave and Elizabeth Russell) that they would be jointly and severally liable to Defendant for $580.00 in fees in the event counsel did not explain why such amounts should not be awarded. See id. at p. 7.

The Second Order also ordered Plaintiff's counsel to pay Defendant the amount determined in the First Order, as Plaintiff's counsel had failed to show cause as to why those fees should not be awarded. See docket no. 14; note 1, supra.

See Yvonne A. Sanchez v. HomeEq Servicing Corporation (Mortgage Servicer) and Wells Fargo Bank (Owner), cause no. 2006-CI-17153, filed in the 131st Judicial District Court of Bexar County, Texas; Yvonne A. Sanchez v. Wells Fargo Bank, N.A., as Trustee Under Pooling and Servicing Agreement Dated as of April 1, 2005 Asset-Backed Pass-Through Certificates Series 2005-WHQ2, cause no. 2008-CI-01715, filed in the 224th Judicial District Court of Bexar County Texas; Yvonne A. Sanchez v. Wells Fargo Bank, N.A., as Trustee Under Pooling and Servicing Agreement Dated as of April 1, 2005 Asset-Backed Pass-Through Certificates Series 2005-WHQ2, cause no. 2011-CI-09181, filed in the 288th Judicial District Court of Bexar County Texas.

Indeed, as noted above, the Court has also ordered that Plaintiff's counsel reimburse Defendant for certain of its expenses in this case, and that too has not induced Plaintiff to participate in this litigation. See notes 1 & 2, supra.