Opinion
C. A. 3:22-2430-SAL-SVH
11-30-2022
Tarus Cummings, Plaintiff, v. NC Financial Solutions of South Carolina, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Tarus Cummings (“Plaintiff”), proceeding pro se and in forma pauperis, brought this action against defendant NC Financial Solutions of South Carolina (“Defendant”). The undersigned recommends this matter be dismissed for failure to prosecute. In the alternative, the undersigned recommends Defendant's motion to compel arbitration be granted and this case be dismissed.
I. Failure to Prosecute
On September 23, 2022, Defendant filed a motion to dismiss. [ECF No. 18]. As Plaintiff is proceeding pro se, the court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising him of the importance of the motion and of the need for him to file an adequate response by October 27, 2022. [ECF No. 20]. Plaintiff was specifically advised that if he failed to respond adequately, the motion may be granted. Notwithstanding the specific warning and instructions set forth in the court's Roseboro order, Plaintiff failed to respond to Defendant's motion.
On November 8, 2022, the court ordered Plaintiff to advise by November 22, 2022, whether he wished to continue with this case. [ECF No. 28]. Plaintiff was further advised that if he failed to respond, the undersigned would recommend Defendant be dismissed for failure to prosecute. Plaintiff filed no response. As such, it appears to the court that he does not oppose the motion and wishes to abandon this action. Based on the foregoing, the undersigned recommends this case be dismissed for failure to prosecute. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Fed.R.Civ.P. 41(b).
II. Dismissal after Compelling Arbitration
In the alternative, the undersigned recommends the district judge grant Defendant's motion to compel arbitration. [ECF No. 19]. Defendant moves to compel arbitration under the Federal Arbitration Act (“FAA”), which provides in part that a “party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court . . . for an order directing that such arbitration proceed in the manner provided for in such agreement.” 9 U.S.C. § 4. Section 2 of the FAA states that a written arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “[Q]uestions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration . . . [and] any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 23-24 (1983).
“Motions to compel arbitration in which the parties dispute the validity of the arbitration agreement are treated as motions for summary judgment.” Rose v. New Day Fin., LLC, 816 F.Supp.2d 245, 251 (D. Md. 2011); Gordon v. TBC Retail Grp., Inc., No. 2:14-CV-03365-DCN, 2016 WL 4247738, at *6 (D.S.C. Aug. 11, 2016) (treating motion to compel arbitration in which the parties disputed the validity of the arbitration agreement as a motion for summary judgment). “Accordingly, arbitration should be compelled where ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Erichsen v. RBC Capital Markets, LLC, 883 F.Supp.2d 562, 566-67 (E.D. N.C. 2012) (quoting Fed.R.Civ.P. 56). A trial is necessary if the material facts regarding the making of an agreement to arbitrate are in dispute. Avedon Engineering, Inc. v. Seatex, 126 F.3d 1279, 1283 (10th Cir. 1997).
To compel arbitration under the FAA, a litigant must demonstrate: “(1) the existence of a dispute between the parties, (2) a written agreement that includes an arbitration provision which purports to cover the dispute, (3) the relationship of the transaction, which is evidenced by the agreement, to interstate or foreign commerce, and (4) the failure, neglect or refusal of the defendant to arbitrate the dispute.” Adkins v. Labor Ready, Inc., 303 F.3d 496, 500-01 (4th Cir. 2002) (quoting Whiteside v. Teltech Corp., 940 F.2d 99, 102 (4th Cir.1991)). Defendant, as the party seeking to enforce the Arbitration Agreement, bears the initial burden of “persuading this court that the parties entered into an enforceable arbitration agreement.” Drake v. Mallard Creek Polymers, Inc., 2014 WL 7405762, at *1 (W.D. N.C. Dec. 30, 2014). If Defendant makes such a showing, then “the burden shifts to the plaintiff to show that even though there was some written contract, he did not actually agree to it- because the signature was forged, the terms of the contract were misrepresented, or some other reason evincing lack of true agreement.” Czopek v. TBC Retail Grp., Inc., 2014 WL 5782794, at *4 (M.D. Fla. Nov. 6, 2014). “When deciding whether the parties agreed to arbitrate a certain matter[,] courts [ ] should apply ordinary state-law principles that govern the formation of contracts.” First Options, 514 U.S. at 944. Here, Defendant provided the signed Arbitration Agreement.
In its motion, Defendant has demonstrated all of the prima facie elements to compel arbitration. Plaintiff has failed to respond to the motion. Therefore, the undersigned recommends Defendant's motion to compel arbitration and dismiss this case be granted.
III. Conclusion and Recommendation
The undersigned recommends this matter be dismissed for failure to prosecute, mooting Defendant's motions. In the alternative, the undersigned recommends Defendant's motion to compel arbitration be granted and this case be dismissed, with the district judge retaining jurisdiction of the case over postarbitration matters, if any.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).