Opinion
8:22-cv-03786-TMC-JDA
01-24-2024
Sarah Martin, Plaintiff, v. Old Dominion Freight Line, John Doe, Progressive Direct Insurance Company, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge
This matter is before the Court following an Order to show cause why this action should not be dismissed for failure to prosecute. [Doc. 54.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review pretrial matters in cases involving individuals proceeding pro seand to submit findings and recommendations to the district judge.
Although Plaintiff was represented by counsel when this case was filed, as explained below, she is no longer represented and is now proceeding pro se.
Plaintiff brought this action in the Newberry County Court of Common Pleas alleging claims arising out of an automobile accident. [Doc. 1-1.] Defendants removed the action to this Court on November 1, 2022. [Doc. 1.]
BACKGROUND
On January 16, 2020, attorney Jason E. Taylor advised Defendant Old Dominion Freight Line (“ODFL ”) that Plaintiff had retained him to pursue personal injury claims. [Doc. 53 ¶ 2.] However, Taylor never filed a notice of appearance. [Id.] After being contacted by Taylor, ODFL retained the law firm Clement Rivers, LLP (“defense counsel”). [Id. ¶ 3.] At some point, Plaintiff retained new counsel, Mike Kelly, who contacted defense counsel on September 9, 2020, but never filed a notice of appearance. [Id. ¶ 4.] In September 2022, a different attorney, Ryan Alderson, filed a lawsuit on Plaintiff's behalf. [Id. ¶ 5.] In the course of the litigation, Alderson provided discovery responses in December 2022 and February 2023. [Id.] Defense counsel also provided responses to discovery in February 2023. [Id.]
On May 11, 2023, defense counsel coordinated Plaintiff's deposition for August 2, 2023. [Id. ¶ 6.] On May 15, 2023, however, Alderson advised defense counsel that Plaintiff was terminating her attorney-client relationship with Alderson. [Id. ¶ 7.] On May 23, Alderson filed a motion to withdraw and to be relieved as counsel. [Doc. 27.] On May 24, Alderson and defense counsel filed a joint motion to extend deadlines [Doc. 28], and the Court entered a Second Consent Amended Scheduling Order on May 26 [Doc. 33]. On June 27, Alderson and defense counsel filed a consent motion for a status conference and to stay the proceedings. [Doc. 36.] In response, the Court entered an Order staying the case until July 31, 2023, to allow Plaintiff to respond to the motion to withdraw or to obtain substitute counsel. [Doc. 38.]
On September 28, 2023, attorney Kambrell Garvin advised defense counsel that Plaintiff had asked him to take over the case. [Doc. 53 ¶ 11.] Since that time, however, defense counsel have not heard back from Garvin, and Garvin has never filed a notice of appearance. [Id.]
On October 24, 2023, the Court granted Alderson's motion to withdraw as counsel of record. [Doc. 41.] The next day, the Court ordered the pro se Plaintiff to apprise the Court of any address changes and advised Plaintiff of the procedural rules for pro se plaintiffs. [Doc. 46.]
Since October 24, 2023, defense counsel have not been contacted by Plaintiff or any counsel of record. [Doc. 53 ¶ 14.] Defendants and their counsel have not been able to conduct any meaningful discovery, including depositions, due to the lack of contact from Plaintiff. [Id. ¶ 15.]
On December 12, 2023, the Court ordered the parties to update the Court by December 14, 2023, regarding the status of mediation, which was ordered to be conducted by December 7, 2023, under the most recent Scheduling Order. [Doc. 51.] Defendants responded with a status report stating that mediation had not occurred. [Doc. 53.] The report also advised the Court of many of the background facts included in this Report and Recommendation.
On December 28, 2023, this Court issued a Text Order requiring Plaintiff to show cause by January 8, 2024, why, given the facts set out in Defendants' status report, this action should not be dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b). [Doc. 54.] Plaintiff elected not to file any response.
DISCUSSION
Based on the foregoing, it appears Plaintiff no longer wishes to pursue this action. “The Federal Rules of Civil Procedure recognize 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.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed.R.Civ.P. 41(b)). “Federal courts possess an inherent authority to dismiss cases with prejudice sua sponte.” Gantt v. Md. Div. of Corr., 894 F.Supp. 226, 229 (D. Md. 1995) (citing Link v. Wabash R. Co., 370 U.S. 626 (1962); White v. Raymark Indus., 783 F.2d 1175 (4th Cir. 1986); Zaczek v. Fauquier Cnty., 764 F.Supp. 1071, 1074 (E.D. Va.1991)).
The Fourth Circuit, in Davis v. Williams, recognizing that dismissal with prejudice is a harsh sanction that should not be invoked lightly, set forth four factors for determining whether Rule 41(b) dismissal is appropriate:
(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 presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and
(4) the effectiveness of sanctions less drastic than dismissal.588 F.2d 69, 70 (4th Cir. 1978). Subsequently, however, the Fourth Circuit noted that “the four factors . . . are not a rigid four-pronged test,” and whether to dismiss depends on the particular circumstances of the case. Ballard, 882 F.2d at 95. For example, in Ballard, the court reasoned that “the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case from those cited by appellant.... In view of the warning, the district court had little alternative to dismissal. Any other course would have placed the credibility of the court in doubt and invited abuse.” Id. at 95-96.
At this point, Plaintiff has not contacted Defendants since she began representing herself on October 24, 2023, which has precluded Defendants from conducting any meaningful discovery, including depositions, and from mediating by the December 7, 2023, deadline. Plaintiff did not respond to the Court's Order to file a status report regarding mediation. When ordered by the Court to show cause by January 8, 2024, why her case should not be dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b), Plaintiff simply failed again to respond. Because Plaintiff is proceeding pro se, she is personally responsible for this failure. Because Plaintiff has repeatedly ignored Court Orders and deadlines, the Court concludes that sanctions less drastic than dismissal would not be effective.
CONCLUSION
Wherefore, based upon the foregoing, the Court recommends the case be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO RECOMMENDED.