     Case: 13-30422   Document: 00512503495   Page: 1   Date Filed: 01/16/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                No. 13-30422                       January 16, 2014
                       consolidated with No. 13-30423
                             Summary Calendar                        Lyle W. Cayce
                                                                          Clerk


BILLY RAY FARMER, III; DIANA FARMER,

                                         Plaintiffs - Appellants
v.

LOUISIANA ELECTRONIC AND FINANCIAL CRIMES TASK FORCE;
TOBY AGUILLARD; MARCUS MCMILLIAN; UNITED STATES OF
AMERICA,

                                         Defendants - Appellees


BILLY RAY FARMER, III; DIANA FARMER,

                                         Plaintiffs - Appellants
v.

THOMAS H. YOUNG, JR.,

                                         Defendant - Appellee


                Appeals from the United States District Court
                    for the Eastern District of Louisiana
                         U.S.D.C. No. 2:10-CV-2971


Before WIENER, OWEN, and HAYNES, Circuit Judges.
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                              Nos. 13-30422 & 13-30423
PER CURIAM:*
       In this consolidated appeal, Billy Ray Farmer III and Diana Farmer
(collectively, the “Plaintiffs”) appeal the district court’s dismissal of their
claims against the Louisiana Electronic and Financial Crimes Task Force (the
“Task Force”), Toby Aguillard, and Marcus McMillian, and the district court’s
partial denial of their motion for default judgment against Thomas Young. We
VACATE and REMAND the district court’s dismissal of the Plaintiffs’ claims
against Aguillard and McMillian and AFFIRM the remaining judgments.
                                             I.
       The Plaintiffs sued the Task Force, Aguillard, McMillian, and Young in
Louisiana state court, asserting various state and federal causes of action
related to the search of their house and the arrest of Billy Farmer. The Task
Force, acting through the United States Attorney, removed the case to federal
court pursuant to 28 U.S.C. § 1442(a)(1), averring that the Task Force was an
agency of the United States. 1 The Task Force later filed a motion to dismiss
the claims against it for lack of subject matter jurisdiction pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et seq. The district court
granted this motion because, inter alia, 2 it found that the United States was



       * 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 The Task Force is comprised of federal, state, and local law enforcement personnel
and was established by the United States Secret Service, a federal law-enforcement agency
that is a component of the Department of Homeland Security, as part of the Patriot Act of
2001.

       2 Citing Sampson v. United States, 73 F. App’x. 48, 49 (5th Cir. 2003) (unpublished),
the district court also dismissed the Plaintiffs’ constitutional tort claims against the Task
Force on the ground that the United States has not waived sovereign immunity for
constitutional torts. The Plaintiffs abandon this issue on appeal by failing to mention it in
their brief. See Webb v. Investacorp, 89 F.3d 252, 257 n.2 (5th Cir. 1996). Therefore, we
review only whether the Plaintiffs’ common law tort claims were properly dismissed pursuant
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                                Nos. 13-30422 & 13-30423
the proper defendant and that the Plaintiffs failed to exhaust their
administrative remedies as required by the FTCA in order to assert common
law tort claims against the United States. 3
       Thereafter, defendants Aguillard and McMillian filed a motion to
dismiss, requesting that the district court dismiss the Plaintiffs’ claims against
them with prejudice for failure to comply with the district court’s scheduling
order and failure to prosecute. The district court granted the motion.
       The Plaintiffs then filed a motion for default judgment against Young,
the sole remaining defendant. After a hearing on the motion, the district court
entered judgment for $19,351.61 in favor of Billy Farmer for unlawful arrest
under 42 U.S.C. § 1983. However, the district court denied default judgment
on the Plaintiffs’ claim for malicious prosecution under § 1983 and denied relief
to Diana Farmer on the unlawful arrest claim.
                                               II.
       We review de novo the district court’s dismissal of the Plaintiffs’ claims
against the Task Force for lack of subject matter jurisdiction. Willoughby v.
United States ex rel. U.S. Dep’t of the Army, 730 F.3d 476, 479 (5th Cir. 2013).
The Plaintiffs bear the burden of establishing that subject matter jurisdiction
exists. See id.



to the FTCA.
       3 After the district court dismissed the Plaintiffs’ claims against the Task Force, the

Plaintiffs filed an administrative claim with the Secret Service, which the Secret Service
denied. The Plaintiffs then filed a separate action in the district court against the United
States, alleging claims under the FTCA for the events forming the basis for the instant suit.
See Farmer v. United States, Civ. No. 12-1960 Sec. “S” (3), 2012 U.S. Dist. LEXIS 160405
(E.D. La. Nov. 8, 2012) (unpublished). The United States moved to dismiss, this time
contending that the Plaintiffs’ untimely filing of their administrative claims deprived the
court of jurisdiction. The district court granted the motion. Id. The plaintiffs timely
appealed, and a panel of this court affirmed the district court’s dismissal of this second action.
See Farmer v. United States, No. 12-31255, 2013 U.S. App. LEXIS 18729 (5th Cir. Sept. 9,
2013) (unpublished). The instant appeal decides whether the district court properly
dismissed the Plaintiffs’ claims against the Task Force in the initial action.
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                                Nos. 13-30422 & 13-30423
       A plaintiff may only sue the United States if its sovereign immunity is
explicitly waived in a federal statute; this is a jurisdictional requirement. In
re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 287 (5th Cir.
2012). The FTCA is the exclusive waiver of sovereign immunity for tort claims
against the United States or its agencies. See 28 U.S.C. §§ 1346, 2679(a);
Willoughby, 730 F.3d at 479. The FTCA conditions a court’s jurisdiction on the
plaintiff’s compliance with 28 U.S.C. § 2675(a), which mandates that such a
suit not be instituted until a plaintiff files an administrative claim with the
appropriate federal agency and the claim is finally denied by that agency. See
Price v. United States, 69 F.3d 46, 54 (5th Cir. 1995). The United States, and
not the agency itself, is the proper defendant in an FTCA action. Galvin v.
OSHA, 860 F.2d 181, 183 (5th Cir. 1988).
       There is no dispute that the Task Force is a federal agency as defined by
the FTCA.       See 28 U.S.C. § 2671 (defining “Federal agency” as including
“executive departments, . . . independent establishments of the United States,
and corporations primarily acting as instrumentalities or agencies of the
United States”). 4 Accordingly, the United States is the proper defendant, and
the FTCA is the Plaintiffs’ exclusive remedy for their common law tort claims.
As such, subject matter jurisdiction is conditioned on the filing and final denial
of an administrative claim. Because this jurisdictional requirement was not
satisfied, the district court lacked subject matter jurisdiction over the
Plaintiffs’ claims against the Task Force. 5                 The district court properly


       4In their initial complaint, the Plaintiffs acknowledged that the Task Force was
organized by the United States under congressional authority and was acting under the
authority of the United States.

       5 Since the United States, and not the agency itself, is the proper defendant, an FTCA
claim against a federal agency instead of the United States must be dismissed for want of
jurisdiction. Galvin, 860 F.2d at 183. The district court lacked jurisdiction over the Plaintiffs’
claims against the Task Force on this basis as well.
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                              Nos. 13-30422 & 13-30423
dismissed these claims.
       Next, the district court dismissed the Plaintiffs’ claims against Aguillard
and McMillian with prejudice because the Plaintiffs failed to comply with the
court’s scheduling order and failed to offer any reasonable explanation for the
lapse. See FED. R. CIV. P. 41(b). A dismissal with prejudice is “an extreme
sanction that deprives a litigant of the opportunity to pursue his claim.”
Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008) (citation
and internal quotation marks omitted). It is reserved for those cases “where
the plaintiff’s conduct has threatened the integrity of the judicial process, often
to the prejudice of the defense, leaving the court no choice but to deny that
plaintiff its benefits.” Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982).
Accordingly, we have limited the district courts’ discretion to use a dismissal
with prejudice as a sanction. Millan, 546 F.3d at 326. We affirm dismissals
with prejudice for failure to prosecute “only when (1) there is a clear record of
delay or contumacious conduct by the plaintiff, and (2) the district court has
expressly determined that lesser sanctions would not prompt diligent
prosecution, or the record shows that the district court employed lesser
sanctions that proved to be futile.” Tello v. Comm’r, 410 F.3d 743, 744 (5th Cir.
2005) (quoting Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir.
1992)). In those cases where we have affirmed dismissals with prejudice, we
have also generally found at least one of three aggravating factors: (1) delay



       On appeal, instead of attempting to establish that subject matter jurisdiction exists,
the Plaintiffs take issue with the fact that the Task Force removed the case to federal court
pursuant to 28 U.S.C. § 1442(a)(1), as opposed to filing a certificate of scope of employment
for the individual defendants and removing to federal court pursuant to 28 U.S.C.
§ 2679(d)(2). The Plaintiffs also make reference to § 2679(d)(5) and equitable tolling. We do
not consider these arguments because the Plaintiffs did not raise them before the district
court. See Horton v. Bank One, 387 F.3d 426, 435 (5th Cir. 2004) (“Arguments not raised in
the district court cannot be asserted for the first time on appeal.” (citation and internal
quotation marks omitted)).
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                                Nos. 13-30422 & 13-30423
caused by the plaintiffs themselves; (2) actual prejudice to the defendants; or
(3) delay caused by intentional conduct. Millan, 546 F.3d at 326.
       In this case, the record supports the district court’s conclusion that the
Plaintiffs failed to comply with the pretrial order. However, the district court
did not (1) expressly determine in its order of dismissal that lesser sanctions
would not prompt diligent prosecution; (2) consider lesser sanctions (such as
exclusion of evidence or witnesses not revealed); or (3) employ lesser sanctions
to no avail. The district court’s order of dismissal only went so far as to state
that the “Plaintiffs’ failure to comply with the deadlines set forth in this court’s
scheduling order demonstrates a complete disregard for this court’s procedures
and justifies dismissal with prejudice.” 6             Dismissal with prejudice is the
“ultimate sanction,” which “should be imposed only after full consideration of
the likely effectiveness of less-stringent measures.” Hornbuckle, 732 F.2d at
1237. Because we cannot determine from the district court’s order why less-
stringent measures were not employed or whether they were fully considered,
we vacate the district court’s dismissal with prejudice and remand for an
express determination of these matters. See, e.g., id.
       Finally, we review the district court’s partial denial of the Plaintiffs’
motion for default judgment for abuse of discretion. See Settlement Funding,
LLC v. TransAmerica Occidental Life Ins., 555 F.3d 422, 424 (5th Cir. 2009).


       6 We realize that the Plaintiffs filed a motion to alter or amend judgment, and in
denying this motion, the district court stated, inter alia, that “lesser sanctions would not have
been appropriate because the case had been pending for more than two years, and the trial
date was [less than a month away].” Nevertheless, this statement does not explain why lesser
sanctions would not prompt diligent prosecution, nor does it appear from the record that the
trial date could not be reset in conjunction with imposing lesser sanctions. A delayed trial
does not mean that lesser sanctions will prove ineffective. See, e.g., Hornbuckle v. Arco Oil
& Gas Co., 732 F.2d 1233 (5th Cir. 1984) (reversing dismissal with prejudice where plaintiff’s
counsel refused to commence trial as scheduled); Rogers, 669 F.2d 317 (reversing dismissal
with prejudice where plaintiff’s counsel announced not ready at trial and sought a
continuance). It also does not analyze whether lesser sanctions, such as exclusion of
undisclosed evidence, would have been sufficient punishment for the non-disclosure.
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                           Nos. 13-30422 & 13-30423
We may affirm the district court’s judgment on any grounds supported by the
record. See Sobranes Recovery Pool I, LLC v. Todd & Hughes Constr. Corp.,
509 F.3d 216, 221 (5th Cir. 2007). The act of default alone does not entitle a
plaintiff to receive a default judgment in its favor; instead, the judgment
sought must be supported by well-pleaded allegations. See Nishimatsu Constr.
Co. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
      The district court did not err in denying default judgment on the
Plaintiffs’ malicious prosecution claim. This claim fails as a matter of law
because a freestanding claim for malicious prosecution may not be maintained
under 28 U.S.C. § 1983. See Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808,
812–13 (5th Cir. 2010) (citing Castellano v. Fragozo, 352 F.3d 939 (5th Cir.
2003) (en banc)). We likewise find no error in the district court’s denial of relief
to Diana Farmer on the unlawful arrest claim. Since she was not arrested, her
claim fails as a matter of law. See Parm v. Shumate, 513 F.3d 135, 142 (5th
Cir. 2007) (“In order to prevail in a § 1983 claim for false arrest, a plaintiff
must show that he was arrested without probable cause in violation of the
Fourth Amendment.”).
      We AFFIRM the district court’s dismissal of the Plaintiffs’ claims against
the Task Force and partial denial of the Plaintiffs’ motion for default judgment.
We VACATE the district court’s dismissal with prejudice of the Plaintiffs’
claims against Aguillard and McMillian and REMAND for further proceedings
consistent with this opinion.




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