Opinion
C. A. 5:23-6109-TMC-KDW
05-16-2024
Rhonda Rene Fisher Measmer, Plaintiff, v. Law Patriot; Lawyer Thomas Colture; Yvette Walker; and Lauren Hough, Paralegal, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Rhonda Rene Fisher Measmer (“Plaintiff”), proceeding pro se, filed this breach of contract action against Law Patriot, Lawyer Thomas Colture, Yvette Walker, and Paralegal Lauren Hough. Plaintiff seeks damages and other relief for claims connected to Colture's representation of Plaintiff on her pending criminal charges. 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 the district judge dismiss the Complaint in this case without prejudice and without issuance and service of process.
On December 6, 2023, the court issued an order directing Plaintiff to complete a nonprisoner form complaint, to pay the filing fee or submit an application to proceed without prepayment of fees, and to provide the service documents necessary to advance her case. ECF No. 7 at 1-2. The order also advised Plaintiff of her duty to keep the court informed as to her current address. Id. Plaintiff was warned if she failed either to bring the case into proper form within the time permitted or to keep the court informed of her current address, her case may be subject to dismissal. Id. at 2-3. The proper form order was mailed to Plaintiff at the address she provided to the court, ECF No. 8, and was not returned to the court as undeliverable. Accordingly, Plaintiff was presumed to have received the proper form order. However, Plaintiff did not file any of the documents necessary to bring her case into proper form, nor did she submit any response to the court's order.
On January 10, 2024, the undersigned filed a Report and Recommendation recommending Plaintiff's Complaint be summarily dismissed for failing to comply with the court's December 6 order. ECF No. 14. Plaintiff filed an objection to the Report and Recommendation on January 29, 2024. ECF No. 17. On February 1, 2024, the Honorable Timothy M. Cain, United States District Judge, issued an order declining to adopt the Report and Recommendation and recommitting the matter to the undersigned for further proceedings. ECF No. 19. The order further advised Plaintiff she had 14 days to submit the necessary documentation to bring her case into proper form. Id. Plaintiff was also cautioned that the failure to bring her claim into proper form with the appropriate documentation will result in her claim being dismissed. Id.
On February 12, 2024, Plaintiff submitted to the court a Motion for Leave to Proceed in Forma Pauperis and proposed service documents. ECF Nos. 21, 22. Plaintiff however failed to properly complete her service documents as she failed to provide an address where the Defendants could be served. See ECF No. 22.
On February 26, 2024, the court issued an order directing Plaintiff to fully complete the service documents in her case. ECF No. 29. Plaintiff was warned if she failed to bring the case into proper form within the time permitted her case may be subject to dismissal. Id. The proper form order was not returned to the court as undeliverable, and Plaintiff is presumed to have received the order. The time for Plaintiff to file a response to the February 26 order ended on March 18, 2024, and Plaintiff did not respond to the court's order.
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 fourpronged 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.
The Rule 41(b) factors weigh in favor of dismissal. Plaintiff is personally responsible for her failure to comply with the February 26 order. Further, Plaintiff was specifically warned her case would be dismissed if she failed to bring her claim into proper form with the proper documentation. See ECF No. 19. Despite having multiple opportunities to provide the court with fully completed service documents for Defendants, Plaintiff has failed to do so. The undersigned finds Plaintiff's lack of response to the court's orders, despite being warned of the 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 for failure to prosecute.
IT IS SO RECOMMENDED.