Opinion
C. A. 6:23-cv-01348-HMH-KFM
07-13-2023
Darlene Esposito, Plaintiff, v. Resurgent Capital Services, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
This is a civil action filed by a non-prisoner. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
PROCEDURAL HISTORY
The plaintiff's complaint was entered on the docket on April 4, 2023 (doc. 1).
By order dated April 28, 2023, the plaintiff was given an opportunity to provide the necessary information to bring the case into proper form for evaluation and possible service of process, including paperwork regarding payment of the filing fee (doc. 5). The plaintiff was warned that failure to provide the necessary information and paperwork within the timetable set in the order may subject the case to dismissal (id. at 1). The plaintiff was also advised of her duty to keep the court informed as to her current address (id. at 2). The plaintiff did not respond to the order, so a second proper form order was issued on May 26, 2023 (doc. 7). The second proper form order warned the plaintiff a second time that failure to provide the necessary information and paperwork within the timetable set in the order may subject the case to dismissal (id. at 1). The second proper form order also reminded the plaintiff of her duty to keep the court informed as to her current address (id. at 2). The plaintiff did not respond to the court's April 28, 2023, or May 26, 2023, orders and the time for response has lapsed; as such, the plaintiff has failed to comply with orders of this court and to bring her case into proper form.
ALLEGATIONS
The plaintiff, a non-prisoner, filed this action seeking damages pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (doc. 1). The plaintiff alleges that the defendant has failed to respond to a FOIA requesting information about matters included on her credit report (id.). The thirty day deadline for the defendant to respond to the FOIA has expired (id. at 2).
APPLICABLE LAW & ANALYSIS
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
It is well established that a court has the authority to dismiss a case pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (emphasis added). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed.R.Civ.P. 41(b). Id. at 630. In considering whether to dismiss an action pursuant to Rule 41(b), the court is req uired to consider four factors:
(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978).
Here, the factors weigh in favor of dismissal. With respect to factors (1) and (3), as noted, despite multiple opportunities, the plaintiff has failed to bring her case into proper form. In doing so, she has failed to comply with the court's orders of April 28, 2023, and May 26, 2023, which instructed the plaintiff to provide specific documentation to the court so that the case may be screened as required by 28 U.S.C. § 1915, and so the United States Marshals Service could attempt service of process if service was authorized (docs. 5; 7). Each order warned the plaintiff of the consequences of failing to comply with the orders' instructions, including the dismissal of his case pursuant to Fed.R.Civ.P. 41(b) (docs. 5 at 1; 7 at 1). Despite these warnings, the plaintiff has not provided the court with the required documentation. Accordingly, as the plaintiff has failed to comply with the court's orders and has been previously warned that such failures could result in dismissal, it appears that less drastic sanctions would not be appropriate. As such, the undersigned recommends that the instant action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to comply with orders of the court.
Additionally, the undersigned notes that the plaintiff's complaint would be subject to summary dismissal even if she had brought it into proper form, because her allegations are frivolous and fail to state a claim for relief. See Feurtado v. McNair, C/A No. 3:05-cv-1933-SB, 2006 WL 1663792, at *2 (D.S.C. Jun. 15, 2006) (noting that frivolousness encompasses inarguable legal conclusions and fanciful factual allegations), aff'd, 227 Fed.Appx. 303 (4th Cir. 2007), petition for cert. dismissed, 553 U.S. 1029 (2008). FOIA was enacted to facilitate public access to government documents. U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991). However, FOIA only applies to federal agencies - not private entities, such as the defendant in this action. See Nasi El for Collins v. South Carolina, C/A No. 2:22-cv-00506-BHH-MHC, 2022 WL 2835752, at *6 (D.S.C. June 17, 2022) (internal citations omitted). As such, the plaintiff's allegations that the defendant - a private entity - violated FOIA are clearly frivolous, and they fail to show any arguable basis in fact or law. Feurtado, 2006 WL 1663792, at *2. Indeed, the plaintiff has had 4 prior cases dismissed for the exact same reason. See Esposito v. Midland Credit Mgmt., Inc., C/A No. 5:23-cv-10619, 2023 WL 3483874 (E.D. Mich. May 16, 2023) (dismissing FOIA claims because the defendant was a private entity); Esposito v. Center Point Legal Solutions, C/A No. 0:23-cv-00645 (SRN/DJF), 2023 WL 2918025 (D. Minn. Apr. 12, 2023) (same); Esposito v. Verif Acts, Inc., C/A No. 3:23-cv-50078, at docs. 4; 5 (N.D. Ill. Apr. 11, 2023) (same); Esposito v. Google, LLC, C/A No. 2:23-cv-00245, 2023 WL 2078222 (W.D. Penn. Feb. 17, 2023) (same). In one of those cases, the court reminded the plaintiff as follows:
Esposito has been told before-in plain, uncomplicated terms-that FOIA does not apply to private entities, and she would have received this message from another federal court only days before initiating this lawsuit. See Esposito v. Google LLC, No. 23-245, 2023 WL 2078222, at *2 (W.D. Penn. Feb. 17, 2023). Since that time, Esposito has received this message again from another federal court. See Esposito v. Verif Acts, Inc., No. 23 C 50078, Doc. No. 4 (N.D. Ill. Mar. 10, 2023). This Court is now the third to tell Esposito what is compelled from the text of the statute: FOIA applies to federal agencies, not non-governmental entities. Going forward, Esposito should take care to ensure that there is a non-frivolous argument that the defendant she is suing under FOIA is subject to FOIA.Esposito, 2023 WL 2918025, at *1. As such, even if the plaintiff had brought her case into proper form, it would still be subject to summary dismissal.
RECOMMENDATION
The undersigned is of the opinion that the plaintiff cannot cure the defects identified above by amending her complaint. Therefore, the undersigned recommends that the district court dismiss this action without prejudice, without leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 791 (4th Cir. 2022) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). It is further recommended that the United States District Judge assigned to this case warn the plaintiff regarding the entry of sanctions in the future should the plaintiff continue to file frivolous litigation in this court. The attention of the parties is directed to the important notice on the next page.
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 250 East North Street, Room 2300 Greenville, South Carolina 29601
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).