Opinion
C. A. 4:23-5949-JD-KDW
02-12-2024
Nancy Irene Lamb, Appellant, v. The Bank of New York Mellon, Appellee. Kevin Campbell, Trustee.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Nancy Irene Lamb (“Appellant”), proceeding pro se, filed this action seeking to appeal an October 31, 2023, order denying Appellant's Motion for Continuance, and a November 3, 2023, order granting Appellee The Bank of New York Mellon's Motion to Dismiss Appellant's bankruptcy filing. ECF No. 1. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends that the district judge dismiss the Complaint with prejudice.
On December 4, 2023, the court directed Appellant to pay the appropriate filing fee as required by Fed.R.Bankr.P. 8003 by December 27, 2023. ECF No. 7. Appellant was warned that the failure to comply with the court's order may subject the case to dismissal. Id. Appellant paid the filing fee on December 27, 2023. ECF No. 19. On January 10, 2024, Appellant was directed to submit a designation of items to be included in the record on appeal and a statement of issues to be presented as required by Fed.R.Bankr.P. 8009. ECF No. 16. Appellant was again warned that the failure to comply with the court's order may subject the case to dismissal. Id. Appellant had until January 31, 2024, to submit a response to the court's January 10 order, and Appellant did not respond. See Lamb v. Bank of New York Mellon, Adversary Proceeding No. 23-80041-EG (Bankr. D.S.C. Nov. 3, 2023).
It is well established that a district court has authority to dismiss a case for failure to prosecute. “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). 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 should consider the following 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 [plaintiff's history of] proceeding in a dilatory fashion; and,
(4) the effectiveness of sanctions less drastic than dismissal.Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (quoting McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)) (internal quotation marks omitted). These four factors “‘are not a rigid four-pronged test'” and whether to dismiss depends on the particular circumstances of the case. Attkisson v. Holder, 925 F.3d 606, 625 (4th Cir. 2019) (quoting Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989)). For example, in Ballard, the court noted the Magistrate judge's explicit warning to a litigant that a failure to obey his order would result in a recommendation that the district court dismiss his case. Ballard, 882 F.2d at 95-96. The court explained this warning was an important factor supporting dismissal. Id.
In this case, the Rule 41(b) factors weigh in favor of dismissal. As Plaintiff is proceeding pro se, she is personally responsible for her failure to comply with the January 10 order. Further, Plaintiff was specifically warned her case may be subject to dismissal if she failed to comply with the court's order and bring her case into proper form. See ECF Nos. 7, 16. The undersigned concludes Plaintiff's lack of response to the proper form order, despite being warned of the possible dismissal of her action if she failed to respond, indicates Plaintiff no longer intends to pursue this action. See Fed.R.Civ.P. 41(b); Ballard, 882 F.2d at 95. The undersigned recommends this case be dismissed without prejudice for failure to prosecute.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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
Post Office Box 2317
Florence, South Carolina 29503
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).