Opinion
C/A 8:23-cv-04948-JD-JDA
11-14-2023
Hattie P. Hall, Plaintiff, v. Discover Bank, Defendant.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Hattie P. Hall (“Plaintiff”), a non-prisoner litigant, proceeding pro se, brings this civil action against the above-named Defendant. The provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B), D.S.C., authorize the undersigned Magistrate Judge to review the Complaint for relief and submit findings and recommendations to the District Court. Upon review, the undersigned concludes that this action is subject to dismissal for the reasons below.
This case is one of seven cases filed simultaneously by Plaintiff making similar allegations against various Defendants (case numbers 8:23-cv-4846, 8:23-cv-4947, 8:23-cv-4948, 8:23-cv-4949, 8:23-cv-4950, 8:23-cv-4951, and 8:23-cv-4952).
Plaintiff sues Discover Bank (“Discover”) and, although Plaintiff lists Discover as the Plaintiff on the Complaint form [Doc. 1 at 1], the Clerk opened the case by listing Discover as the Defendant.
Plaintiff commenced this action by filing a Complaint on the standard form [Doc. 1] along with supporting documents [Doc. 1-1]. However, Plaintiff did not complete Section II of the Complaint form regarding the “Basis for Jurisdiction.” [Doc. 1 at 3.] Plaintiff also filed a Form AO 240 Application to Proceed in District Court without Prepaying Fees or Costs, which is construed as a motion for leave to proceed in forma pauperis (the “IFP Motion”). [Doc. 2.] However, Plaintiff did not fully complete or sign the IFP Motion. [Id.] Plaintiff also filed a proposed summons form but that form is also incomplete. [Doc. 3 (court only document).] Finally, Plaintiff filed pro se party's answers to Rule 26.01 interrogatories, but that document is also unsigned. [Doc. 4.]
Accordingly, by Order dated October 6, 2023, Plaintiff was directed to provide the necessary information and paperwork to bring this case into proper form for further evaluation and possible service of process. [Doc. 7.] Specifically, under General Order In Re: Procedures in Civil Actions Filed by Non-Prisoner Pro Se Litigants, No. 3:07-mc-5015-JFA (D.S.C. Sept. 18, 2007), Plaintiff was directed to complete and return her Complaint; complete, sign, and return her IFP motion; submit properly completed service documents, including a summons form and Form USM 285; and submit fully completed and signed pro se party's answers to the Court's special interrogatories. [ Id. at 2-3.] Plaintiff was warned that failure to provide the necessary information and paperwork by October 27, 2023, may subject the case to dismissal:
The Court issued special interrogatories to Plaintiff to better understand the nature of her claims and the facts underlying those claims. [Doc. 7-1.] Indeed, the undersigned questions whether this Court has jurisdiction over the claims purportedly asserted by Plaintiff to the extent they can be understood. However, in the absence of a completed complaint form and without the answers to the special interrogatories, an evaluation of Plaintiff's claims and whether the Court does indeed possess jurisdiction over them is not possible.
If Plaintiff does not bring this case into proper form within the time permitted by this Order, this case may be dismissed for failure to prosecute and failure to comply with an order of this Court under Rule 41 of the Federal Rules of Civil Procedure.[Id. at 1 (emphasis omitted).]
The Order also advised Plaintiff of her duty to always keep the Court informed as to her current address. [Id. at 4.] The Order was mailed to Plaintiff at the address she provided to the Court [Doc. 8], and it has not been returned to the Court as undeliverable. Accordingly, Plaintiff is presumed to have received the Order.
“The Court has inherent power to manage its docket in the interests of justice.” Luberda v. Purdue Frederick Corp., No. 4:13-cv-00897-RBH, 2013 WL 12157548, at *1 (D.S.C. May 31, 2013). It also has the authority expressly recognized in Rule 41(b) to dismiss an action for failure to prosecute or to comply with the Federal Rules of Civil Procedure or a Court Order. Fed.R.Civ.P. 41(b) (authorizing a district court to dismiss an action if a plaintiff fails to comply with an Order of the Court); see also Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (noting Rule 41“recognize[s] that courts must have the authority to control litigation before them, and this authority includes the power to order dismissal of an action for failure to comply with court orders”). “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).
Plaintiff did not respond to this Court's October 6th Order, and the time for response has lapsed. Plaintiff has failed to prosecute this case and has failed to comply with an Order of this Court. Accordingly, the case should be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
RECOMMENDATION
For the reasons above, it is recommended that the District Court DENY Plaintiff's IFP motion [Doc. 2] for failure to complete and sign the IFP form and DISMISS this action without issuance and service of process pursuant to Rule 41(b) for failure to prosecute and comply with the Court's Order.
IT IS SO RECOMMENDED.
Plaintiff's attention is directed to the important notice on the next page.
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, Suite 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).