Opinion
C. A. 8:23-cv-04967-DCC-KFM
04-30-2024
Astrin Gordon, Teddy's Paw Pet Goods, LLC, Plaintiff, v. Mercedes Benz USA; Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This is a civil action filed by a non-prisoner proceeding pro se. 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 instant matter was entered on the docket on October 4, 2023 (doc. 1). In the complaint, plaintiff Astrin Gordon purported to bring trademark infringement claims against the defendant on her own behalf and on behalf of Teddy's Paw Pet Goods, LLC (hereinafter “Pet Goods”) (id.). By order dated October 17, 2023, plaintiff Astrin Gordon was informed that she could not represent the other plaintiff in this action, Pet Goods, because Pet Goods was a corporation and any filings on Pet Goods' behalf must be filed with the court through counsel admitted to practice in this District (doc. 9 at 1 (citing Days Inn Worldwide, Inc. v. JBS, Inc., C/A No. 4:08-cv-1771-TLW-TER, 2010 WL 625391 (D.S.C. Feb. 19, 2010) (corporation may not represent itself, and a pro se litigant may not represent a corporation)). The order also instructed plaintiff Astrin Gordon to submit certain documents to bring the case into proper form, including paperwork regarding payment of the filing fee (doc. 9). Plaintiff Astrin Gordon 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). Plaintiff Astrin Gordon was also advised of her duty to keep the court informed as to her current address and warned that failure to keep her address updated with the court may result in dismissal of the case (id. at 2-3). Plaintiff Astrin Gordon did not respond to the order, and no attorney filed a notice of appearance on Pet Goods' behalf, so a second proper form order was issued on November 21,2023 (doc. 11). The second proper form order reminded plaintiff Astrin Gordon that she could not represent Pet Goods in this action because a pro se party cannot represent a corporation (id. at 1). The order also warned plaintiff Astrin Gordon 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 plaintiff Astrin Gordon of her duty to keep the court informed as to her current address (id. at 3). Plaintiff Astrin Gordon did not respond to the court's October 17, 2023, or November 21, 2023, orders, no attorney has noticed an appearance in this action on Pet Goods' behalf, and the time for response has lapsed; as such, plaintiff Astrin Gordon has failed to comply with orders of this court and to bring this case into proper form.
ALLEGATIONS
Plaintiff Astrin Gordon, proceeding pro se, filed this action on her own behalf and on behalf of Pet Goods, asserting trademark infringement by the defendant (doc. 1). The plaintiffs contend that the defendant utilized a Facebook ad in August 2023 that used similar colors and product promotions to the dog leashes utilized by Pet Goods (id. at 5). For relief, the plaintiffs seek money damages (id.).
APPLICABLE LAW & ANALYSIS
Plaintiff Astrin Gordon 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, plaintiff Astrin Gordon'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 required 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, plaintiff Astrin Gordon has failed to bring her case into proper form (and no attorney has filed a notice of appearance to represent Pet Goods in this action). In doing so, the plaintiffs have failed to comply with the court's orders of October 17, 2023, and November 21, 2023, which informed plaintiff Astrin Gordon that she could not represent Pet Goods in this action and instructed plaintiff Astrin Gordon 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. 9; 11). Each order warned the plaintiffs of the consequences of failing to comply with the orders' instructions, including the dismissal of this case pursuant to Fed.R.Civ.P. 41(b) (docs. 9 at 1; 11 at 1). Despite these warnings, no attorney has filed a notice of appearance on Pet Goods' behalf and plaintiff Astrin Gordon has not provided the court with the required documentation. Accordingly, as the plaintiffs have 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 instant matter would be subject to summary dismissal even if plaintiff Astrin Gordon had brought her case into proper form. Indeed, although plaintiff Pet Goods is listed as the owner of a trademark on the United States Patent and Trademark Office, plaintiff Astrin Gordon is not. Trademark Electronic Search System, https://tmsearch.uspto.gov/bin/gate.exe?f=tess& state=4803:1t6ywm.2.1 (choose Basic Word Mark Search (New User), enter “Teddy's Paw Pet Goods, LLC,” and then click Submit Query) (last visited December 7, 2023). As such, because plaintiff Astrin Gordon is not listed as the owner of any trademark, her complaint, seeking money damages for trademark infringement, would be subject to summary dismissal even if she had brought the case into proper form. Further, as noted above, even though Pet Goods is listed as the owner of a trademark, plaintiff Astrin Gordon may not represent Pet Goods (a corporation) in this action pro se; thus, even presuming the case had been brought into proper form on Pet Goods' behalf, it would still be subject to dismissal because no attorney has noticed an appearance on Pet Goods' behalf.
RECOMMENDATION
The undersigned is of the opinion that the defects identified above cannot be cured by amending the 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”). 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).