     Case: 15-10912      Document: 00513475314         Page: 1    Date Filed: 04/21/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-10912                                 FILED
                                  Summary Calendar                           April 21, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
JESSE F. REECE, SR.,

              Plaintiff - Appellant

v.

HOWMET CORPORATION; ALCOA, INCORPORATED,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:15-CV-78


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
       Jesse F. Reece, Sr., a pro se plaintiff, appeals the district court’s
dismissal without prejudice for failure to prosecute and comply with the court’s
orders. In May 2015, Reece brought suit against “Alcoa Power and Howmet
Corporations,” which the district court determined based upon submissions
from the defendant was properly Howmet Castings and Services, Inc., Reece’s



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 15-10912
former employer. Howmet had fired Reece a few months before he brought this
suit. The district court understood Reece’s claim to be for breach of contract. 1
       The district court ordered the parties to meet, confer, and issue a joint
proposed scheduling order for the case by August 27, 2015. Citing several
unsuccessful attempts to confer with Reece, Howmet filed a report individually
and informed the district court that Reece did not contribute. The district court
therefore entered an order instructing Reece to file a pleading responding to
Howmet’s report no later than September 4, 2015 and warned that, if Reece
failed to do so, his case may be dismissed. Reece filed a Motion for a More
Definite Statement and Answer on September 4th, but the motion did not
address Howmet’s report.            The district court therefore issued an order
explaining that the motion was not responsive to the court’s order, and
instructing Reece to file a pleading by September 14th that explained why he
failed to meet and confer with opposing counsel and file a joint status report.
The district court again warned that failure to do so may result in dismissal of
his case. Reece, however, did not comply. The district court thus dismissed



       1 While neither the parties nor district court questioned subject matter jurisdiction,
we must do so sua sponte if we discover a possible jurisdiction issue. Bridgmon v. Array Sys.
Corp., 325 F.3d 572, 575 (5th Cir. 2003). Reece indicated on his complaint cover sheet that
his case arises under federal question jurisdiction and wrote that the applicable civil statute
is “440 Other Civil Right (365 Personal Product Liability)”; however, his cause of action
appears to be—and was understood by the district court as—a state law breach of contract
claim. Thus he does not seem to have pled a cause of action arising under federal law. The
defendants represent in their briefing to this Court that subject matter jurisdiction is proper
under diversity jurisdiction. Looking to the entity the district court interpreted as the proper
defendant, Howmet Casting & Services, Inc., public documents indicate that it is
incorporated in Delaware and has its principle office in Cleveland, Ohio. OHIO SECRETARY
OF STATE, State of Ohio Certificate for Howmet Castings & Services, Inc., Foreign
License/For        Profit       (Doc.        No.      200501900116),           http://www2.sos.
state.oh.us/reports/rwservlet?imgc12g&Din=200501900116. See United States v. Herrera-
Ochoa, 245 F.3d 495, 501 (5th Cir. 2001) (“An appellate court may take judicial notice of facts,
even if such facts were not noticed by the trial court.”). The amount in controversy is also
satisfied, as Reece claims over $400,000 in damages. Thus the evidence presently before the
Court indicates that jurisdiction is proper.
                                               2
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                                 No. 15-10912
the action without prejudice for failure to prosecute and comply with the
district court’s order. Reece appeals.
      Under Federal Rule of Civil Procedure 41(b), a district court may dismiss
an action based on the plaintiff’s failure to prosecute or comply with orders of
the court. FED. R. CIV. P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126, 1127
(5th Cir.1988). We review such dismissals for abuse of discretion. Id.
      The district court gave Reece several opportunities to explain why he had
not conferred with opposing counsel and to respond to Howmet’s report on a
proposed trial schedule; with each opportunity, it warned that failure to comply
could result in dismissal of his case. But Reece continued to be unresponsive
to these instructions, limiting the court’s ability to move the case forward. And
significantly, the dismissal was without prejudice, meaning that Reece can file
his claim again. It does not appear from the record, nor does Reece allege, that
his claim is time barred. See, Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002)
(citing TEX. CIV. PRAC. & REM. CODE § 16.051) (“A party asserting a breach of
contract claim must sue no later than four years after the day the claim
accrues.”). Reece has not suffered prejudicial harm. See McCullough, 835 F.2d
at 1127; Manning v. Cheramie Bros. Bo Truc, 247 F. App’x 565, 566 (5th Cir.
2007). District courts are “allowed leeway in the difficult task of keeping their
dockets moving,” and the sanction of dismissal without prejudice may be
appropriate. McCullough, 835 F.2d at 1127. We thus hold that the district
court acted within its discretion.
      AFFIRMED.




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