Opinion
C. A. 7:24-cv-1382-HMH-KFM
05-09-2024
Charles Mierek, Plaintiff, v. Santander Consumer USA Inc. d/b/a Chrysler Capital, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
This case was removed to this court from the Spartanburg County Court of Common Pleas (doc. 1). The docket number for the state court action was Case No. 2024-CP-42-00713 (id. at 1). Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
PROCEDURAL HISTORY
On February 20, 2024, proceeding pro se, the plaintiff filed a complaint against the defendant in the Spartanburg County Court of Common Pleas. Spartanburg County Public Index, https://publicindex.sccourts.org/Spartanburg/PublicIndex/ PISearch.aspx (enter 2024CP4200713) (last visited May 8, 2024). On March 22, 2024, the defendant removed the action to this court (doc. 1). That same day, the undersigned issued an order instructing the plaintiff to complete, sign, and return Local Civil Rule 26.01 Interrogatories (doc. 6). The order reminded the plaintiff to notify the clerk in writing of any change of address and warned that failure to keep his address updated with the Court may lead to dismissal of the case (id. at 2). The order also warned the plaintiff that his failure to comply with the order and submit completed Local Civil Rule 26.01 Interrogatories could
subject his complaint to dismissal for failure to prosecute and failure to comply with an order of the court (id. at 1). The plaintiff did not respond to the March 22, 2024, order, so on April 16, 2024, a second order was issued instructing the plaintiff to complete, sign, and return Local Civil Rule 26.01 Interrogatories (doc. 10). The order also instructed the plaintiff to comply with Rule 4(1) by filing proof of service that he served the complaint on the defendant (id. at 1-2). The order also reminded the plaintiff for a second time to notify the clerk in writing of any change of address and warned that failure to keep his address updated with the Court may lead to dismissal of the case (id. at 2). The order warned the plaintiff that his failure to comply with the order and submit completed Local Civil Rule 26.01 Interrogatories or proof of service pursuant to Rule 4(1) could subject his complaint to dismissal for failure to prosecute and failure to comply with an order of the court (id. at 1). To date, the plaintiff has not complied with the court's orders and the time for response has lapsed.
ALLEGATIONS
The plaintiff filed this action seeking damages from the defendant based upon events that occurred after the plaintiff co-signed on a loan for his brother before his brother passed away (doc. 1-1 at 5-12). The plaintiff's causes of action are that the defendant published negative and false information on his credit report about the co-signed loan (id. at 10-11). For relief, the plaintiff seeks a declaration that he does not owe the debt for which he co-signed, money damages, and to have the negative information removed from his credit report (id. at 12).
APPLICABLE LAW & ANALYSIS
It is well established that a court has the authority to dismiss a case pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). “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) (emphasis added). 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 is req uired to consider four 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 history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978).
Here, the factors weigh in favor of dismissal. With respect to factor (1) the plaintiff is proceeding pro se in this court, so he is responsible for his failure to respond to court orders. Further, with respect to factors (2) and (3), the plaintiff has failed to comply with deadlines set by this court by failing to submit completed Local Civil Rule 26.01 Interrogatories as well as an affidavit pursuant to Rule 4(1) of the Federal Rules of Civil Procedure regarding service of the complaint on the defendant (see docs. 6; 10). With respect to factor (4), the plaintiff has not responded to court orders despite being warned that this matter would be recommended for dismissal if he failed to comply with the court orders (docs. 6 at 1; 10 at 1); thus, it appears that less drastic sanctions other than dismissal are not appropriate. Accordingly, as the plaintiff has failed to comply with this court's March 22, 2024, and April 16, 2024, orders, the undersigned recommends that the instant action be dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to comply with orders of the court.
RECOMMENDATION
As noted above, the plaintiff has failed to comply with multiple court orders. Therefore, the undersigned recommends that the district court dismiss this action without prejudice, without leave to amend, and without issuance and service of process pursuant to Rule 41 of the Federal Rules of Civil Procedure. See Britt v. DeJoy, 45 F.4th 790, 2022 WL 3590436 (4th Cir. Aug. 17, 2022) (mem.) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). If the United States District Judge adopts this recommendation, it is further recommended that the plaintiff's motion for a preliminary injunction (doc. 4) be denied as moot. The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
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 committees 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, Room 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).