Opinion
4:21-2736-JD-TER
03-16-2022
Cynthia Oyebanji, Plaintiff, v. Palmetto Vacation Rentals, LLC, John Does A to Z, Kurt Schultz, Sandra Schultz, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE.
On August 20, 2021, a district judge in the United States District Court for the District of New Jersey granted in part and denied in part Defendant Palmetto Vacation Rentals, LLC's Motion to Dismiss and transferred this action to the United States District Court for the District of South Carolina. (ECF Nos. 33, 34). On October 29, 2021, the district judge in this action by order noted that Plaintiff's counsel of record was not admitted to practice before this court and had not moved for pro hac vice admission. Counsel was given 10 days to obtain local counsel. On November 20, 2021, the case was referred to the undersigned because no local counsel filed a notice of appearance and Plaintiff was proceeding pro se. On December 6, 2021, Plaintiff was directed to provide summonses on three defendants: John Does A to Z, Kurt Schultz, and Sandra Schultz. Plaintiff was given an ample 45 days to submit the summonses and did not respond to the order at all.
The mail in which the Order was sent to Plaintiff's provided address has not been returned to the court, thus it is presumed that Plaintiff received the Order but has neglected to comply with the Order within the time permitted under the Order. The Court has not received a response from Plaintiff and the time for compliance has passed.
“The court has “inherent power to manage its docket in the interests of justice.” Luberda v. Purdue Frederick Corp., No. 4:13-cv-00897, 2013 WL 12157548, at *1 (D.S.C. May 31, 2013). It also has the authority expressly recognized in Rule 41(b) to dismiss actions for failure to prosecute. Fed.R.Civ.P. 41(b). “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.” Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962).
Plaintiff has failed to properly respond to the Order within the time ordered. Plaintiff's lack of response indicates an intent to not prosecute this case against defendants John Does A to Z, Kurt Schultz, and Sandra Schultz, and subjects this case to dismissal as to those defendants. See Fed. R. Civ. P. 41(b)(district courts may dismiss an action if a Plaintiff fails to comply with an order of the court); see also Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989)(dismissal with prejudice appropriate where warning given); Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982)(court may dismiss sua sponte).
Accordingly, it is recommended that defendants John Does A to Z, Kurt Schultz, and Sandra Schultz be dismissed without prejudice. Because served Defendant Palmetto Vacation Rentals LLC and Plaintiff separately stipulated to dismissal as to that Defendant on January 31, 2022, the recommendation as to the remaining defendants will close the case.
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).