FORT WORTH – A “calendaring error” is apparently the reason why Mostyn Law failed to comply with a court order – a mistake that nearly led to a client’s hail suit being dismissed for want of prosecution.
Most of the claims and defendants in the case of Antonio Perez vs. Allstate Vehicle and Property Insurance have already been dismissed, as court records show Allstate has fervently fought the lawsuit on every count.
On Sept. 20, a federal judge dismissed all of Perez’s claims except for a breach of contract assertion, which the trial court still questioned, finding that the “plaintiff has pleaded no facts identifying any specific contractual provision breached by Allstate.”
The Mostyn client was given until Sept. 27 to amend his complaint. When he didn’t, the court ordered Perez to show cause on why his action should not be dismissed for failing to comply.
Perez was ordered to respond by Oct. 6 or face possible sanctions, court records show.
Two days before the deadline, on Oct. 4, Perez, “together with his counsel,” filed a response, asking the court not to dismiss the case for failure to prosecute.
“Plaintiff and his counsel did not act with any dilatory or bad faith motive in failing to file an amended complaint within the time period ordered by this Honorable Court,” the response states.
“Specifically, a calendaring error was made unintentionally by Plaintiffs counsel's staff regarding the date to file the amended complaint.”
In its response, Mostyn Law argued “dismissal of an action with prejudice” and “entry of judgment by default” are “drastic remedies” that should only be “used in extreme situations,” and that the "the sanction of dismissal is the most severe sanction that a court may apply, and its use must be tempered by a careful exercise of judicial discretion.”
The firm also maintained that Perez “made an obvious error in his failure to comply with the Court's deadline to amend Plaintiffs live pleading, which Plaintiff and his counsel deeply regret.”
A second amended complaint accompanied the response, court records show.
On Oct. 5, the trial court entered an order stating that it is “satisfied with the explanation of plaintiff and plans to take no further action with regard to such show cause order at this time.”
Allstate was given until Oct. 20 to respond to the amended complaint.
Perez’s first complaint was filed in May in Tarrant County and alleged he was not fully compensated for damage caused by a hailstorm a year earlier. The case was removed to federal court in June.
The case was originally filed through Mostyn Law’s former head of litigation, Rene Sigman, who left the firm for the Merlin Law Group in July.
Mostyn Law attorney Gregory Cox is now handling the litigation.
Allstate is represented by Neil Rambin and Susan Egeland, attorneys for the Dallas law firm Drinker Biddle & Reath.
U.S. District Judge John McBryde is presiding over the litigation.
Filed in the U.S. District Court for Northern Texas, Fort Worth Division, cause No. 4:17-cv-00490-A