Opinion
C. A. 4:22-cv-02312-JD-KDW
05-28-2024
RALPH WILSON, JR., personally and as Agent/Owner/Operator of Ralph Wilson Law PC d/b/a Ralph Wilson Law Firm LLC, Plaintiff, v. MATTHEW CHIVATTONI; OFFICER SHANNON; HORRY COUNTY CLERK OF COURT; GRAY MEDIA GROUP, INC. d/b/a GRAY TELEVISION, INC. d/b/a WMBF; GRAY MEDIA GROUP, INC. d/b/a GRAY TELEVISION, INC. d/b/a WIS; SUN NEWS; FITSNEWS, LLC; SINCLAIR BROADCAST GROUP, INC. d/b/a WPDE.; and MYRTLEBEACHSC NEWS; Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE
Plaintiff originally filed this action in state court on May 31, 2022, and it was initially removed to this court on July 19, 2022. Plaintiff alleged multiple causes of action against twenty-five named Defendants. ECF No. 1. This court issued a scheduling order on August 18, 2022. See ECF No. 10. Multiple Defendants then filed Motions to Dismiss. See ECF Nos. 5; 15; 18; 19; 22; 27; 29; 40. Several of the Defendants were subsequently dismissed by way of Stipulations of Dismissal with Prejudice. See ECF Nos. 11; 31; 39; 59; 60. However, Plaintiff opposed three of the Motions to Dismiss. Of these, Plaintiff opposed the Motion to Dismiss filed by Defendants South Carolina Law Enforcement Division (“SLED”), Ashley Jolda, and Kevin Strickland (together, the “SLED Defendants”), ECF No. 27; the Motion to Dismiss filed by Defendants Myrtle Beach Police Department, Prock, Macklin, Fullwood, Paitsel, Clothier, Devoid, and Cook, ECF No. 40; and the Motion to Dismiss filed by Defendant Kevin Brackett, ECF No. 75. Prior to the issuance of any rulings, the court granted a Joint Motion to Stay the Scheduling Order, ECF No. 72, pending resolution of the pending dispositive motions. The court instructed the parties at that time to file a joint motion with a proposed amended scheduling order for the court to consider pending resolution of the dispositive motions. See ECF No. 72.
On July 31, 2023, the court docketed three Reports and Recommendation, recommending that all three pending Motions to Dismiss be granted. ECF Nos. 87, 88, 89. On September 22, 2023, these recommendations were adopted and an Order granting all three Motions to Dismiss was docketed. ECF No. 98. Plaintiff appealed these rulings on October 20, 2023. ECF No. 104. On April 2, 2024, the United States Court of Appeals for the Fourth Circuit dismissed the appeal for failure to prosecute pursuant to Local Rule 45. ECF No. 113-1. On April 9, 2024, this court issued a text order directing Plaintiff to provide a status report as to the current posture of the case on or before April 23, 2024. ECF No. 114. To date, the parties have not provided the court a joint proposed amended scheduling order, nor has Plaintiff responded to the text order issued by this court on April 9, 2024. The case has been pending without any filing from Plaintiff since October 26, 2023, when Plaintiff filed the Notice of Docketing from the Court of Appeals for the Fourth Circuit.
Of the remaining named Defendants, several of them, including Officer Shannon, Matthew Chivattoni, Gray Media Group Inc., Sun News, FITSNews LLC, Sinclair Broadcast Group Inc., and MyrtleBeachSC News have not appeared in this case. One Defendant, the Horry County Clerk of Court, entered an appearance, ECF No. 6, on August 8, 2022. It is not clear whether one or more of these Defendants have been properly served or whether Plaintiff intends to continue any alleged claims against these Defendants.
On April 25, 2024, after not having received a response from Plaintiff despite the court's text order issued April 9, 2024, this court issued another order, directing Plaintiff to advise the court whether he wished to continue with his case and provide a status updated by May 24, 2024. ECF No. 115. Plaintiff was specifically advised that a failure to respond would result in this action being recommended for dismissal with prejudice for failure to prosecute. Despite this warning, Plaintiff has still not provided the court any response.
Federal Rule of Civil Procedure 41(b) provides for the dismissal of actions based upon a plaintiff's failure to prosecute his or her case or to comply with a court order. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (noting that a court deciding whether to dismiss a case under Fed.R.Civ.P. 41(b) must balance the policy of deciding cases on their merits against “sound judicial administration.” In so doing, the court must weigh: 1) plaintiff's responsibility for failure to prosecute, 2) prejudice to defendant from delay, 3) history of delay, and 4) effectiveness of lesser sanctions.); see also Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (noting and applying Davis factors in dismissing case under Fed.R.Civ.P. 41(b)); Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (same). Plaintiff, himself a licensed attorney, is represented by counsel and was provided instructions in three separate orders by the court to provide the court a status update at this point in the case. See ECF Nos. 72; 114; 115. It is also not clear to the court whether some or all of the remaining Defendants have been properly served in this case, yet the case remains pending. It has been nearly two months since Plaintiff's appeal was dismissed in the Fourth Circuit Court of Appeals and approximately seven months since this court has received any communication from Plaintiff or his counsel and Plaintiff does not appear to wish to continue with his case as he has failed to respond to more than one court order.
Based upon the above, and taking into account the factors in Davis, Ballard, and Chandler, the undersigned recommends this action be dismissed with prejudice for failure to prosecute pursuant to Fed.R.Civ.P. 41(b).
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).