                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                                                               F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                               October 2, 2006
                             FOR THE FIFTH CIRCUIT
                                                                           Charles R. Fulbruge III
                               __________________________                          Clerk

                                      No. 05-31009
                                   Summary Calendar
                               __________________________


MUNDAY / ELKINS AUTOMOTIVE PARTNERS LTD.,
doing business as Elkins Nissan
                                                                      Plaintiff-Appellant,

versus

ERIC BRANDON SMITH; ERNEST A. LANDMAN

                                                                   Defendants-Appellees.

                 ___________________________________________________

                       Appeal from the United States District Court
                          for the Western District of Louisiana
                                   (No. 5:04-CV-1786)
                 ___________________________________________________


Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
                *
PER CURIAM:

         The plaintiff, Munday/Elkins Automotive Partners, Ltd., doing business as Elkins

Nissan (“Munday”), appeals the district court’s dismissal without prejudice for lack of

jurisdiction and failure to prosecute. We affirm.




         *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
                             I. FACTS AND PROCEEDINGS

       Munday brought suit against the defendants, Eric Brandon Smith and Ernest A.

Landman, as a result of an incident in which the defendants allegedly crashed their vehicle

into many other vehicles owned by Munday on Munday’s dealership property. On

August 26, 2004, Munday filed a complaint in federal court, alleging diversity jurisdiction

was proper under 28 U.S.C. § 1332. Munday is a limited partnership of which all of its

partners are allegedly Texas citizens. Smith and Landman are Louisiana citizens. The

defendants never responded to the complaint. Nearly six months after the filing of the

complaint, the clerk’s office filed a notice of intent to dismiss for failure to prosecute

pursuant to Local Rule 41.3W, which states that “[a] civil action may be dismissed by the

clerk of court or any judge of this court for lack of prosecution . . . [w]here no responsive

pleadings have been filed or default has been entered within 60 days after service of

process.” This notice afforded Munday ten days in which to file a motion for an extension

of time. Shortly thereafter, Munday filed such a motion, the court granted it, Munday

moved for default judgment, and a notice of entry of default judgment was entered by the

clerk’s office. Subsequently, the clerk’s office issued another notice of intent to dismiss for

failure to prosecute and Munday moved for an entry of default judgment.

       The district court issued a minute entry, sua sponte ordering Munday to provide

information on subject matter jurisdiction, specifically the citizenship of one of the

partners. Munday filed such information, and the district court issued another minute

entry requiring that further information on subject matter jurisdiction be filed by August


                                              2
1, 2005. Munday failed to file anything by August 1, 2005. On August 3, 2005, the district

court dismissed Munday’s case without prejudice for “failure to comply with this Court’s

instructions.” Munday moved for reconsideration and the magistrate judge granted the

motion and extended the time to file the information until August 15, 2005. After Munday

failed to file anything by August 15, 2005, the district court dismissed the case without

prejudice for lack of jurisdiction and failure to prosecute on August 23, 2005. On August

25, 2005, Munday filed another motion for reconsideration, which the district court denied.

Munday timely appealed.

                               II. STANDARD OF REVIEW

       It is well-settled that the district court can dismiss a case sua sponte for failure to

prosecute. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (per curiam); see

also Anthony v. Marion County Gen. Hosp., 617 F.2d 1164, 1167 (5th Cir. 1980) (“Not only

may a district court dismiss for want of prosecution upon motion of a defendant, but it

may also sua sponte dismiss an action whenever necessary to achieve the orderly and

expeditious disposition of cases.”) (internal quotation omitted). The court of appeals

reviews such a dismissal for abuse of discretion. Rogers v. Kroger, 669 F.2d 317, 320 (5th

Cir. 1982).

                                     III. DISCUSSION

       We must first consider the issue of subject matter jurisdiction. Bridgmon v. Array

Sys. Corp., 325 F.3d 572, 575 (5th Cir. 2003). If subject matter jurisdiction is not proper, we

must dismiss Munday’s appeal for want of jurisdiction. Id.


                                              3
       The evidence presently before the court indicates that diversity jurisdiction is

proper. Given, however, that the unheeded order from the district court sought to

discover more about the citizenship of one of the partners in Munday, it is possible that

further fact development could indicate that diversity jurisdiction is not proper. Moreover,

as we affirm the district court’s dismissal without prejudice for failure to prosecute, we,

like the district court, do not reach the merits of the case. See Bader v. Atlantic Int’l, Ltd.,

986 F.2d 912, 916 (5th Cir. 1993).

       Munday argues that dismissal without prejudice for failure to prosecute is too harsh

in light of the facts. The caselaw cited by Munday does not support this argument.

       Munday cites United States v. Blevins, a case that involved the dismissal of an

indictment. 142 F.3d 223, 225 (5th Cir. 1998). The interests involved in dismissing an

indictment are completely different than those in a civil case. In addition, the processes

for refiling a civil case and for indicting a defendant again are completely different.

Blevins is not persuasive here.

       Munday also relies on three cases involving dismissals with prejudice, which

therefore are inapposite. See Gonzalez v. Trinity Marine Group, 117 F.3d 894, 898 (5th Cir.

1997); see also Williams v. Chicago Board of Education, 155 F.3d 853, 854, 857 (7th Cir.

1998) (per curiam); Palmer v. City of Decatur, 814 F.2d 426, 429 (7th Cir. 1987). The harm

from a dismissal with prejudice is quite different from that from a dismissal without

prejudice. See Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720, 725 (7th Cir. 2004)

(“Because a plaintiff may refile the same suit on the same claim, dismissal without


                                               4
prejudice does not constitute such a harsh sanction and does not foreclose a determination

on the merits.”).



       Finally, Munday cites to cases involving dismissals without prejudice but in which

the statute of limitations may effectively render the case dismissed with prejudice because

of a time bar. See Gray v. Fidelity Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981) (per

curiam); Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 212 (5th Cir. 1976)

(“[W]here the dismissal is without prejudice, but the applicable statute of limitations

probably bars further litigation, the standard of review of the District Court's dismissal

should be the same as is used when reviewing a dismissal with prejudice.”). The only

harm that Munday articulates is the cost of refiling and reserving the suit and a delay in

time. We cannot conclude that the district court abused its discretion in dismissing

without prejudice for failure to prosecute.

                                   IV. CONCLUSION

       The judgment of the district court is AFFIRMED.




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