Opinion
l:01CV00931
July 9, 2002
0 R D E R
This matter comes before the Court sua sponte. plaintiff originally brought this action in the state court of North Carolina. He alleged that his insurance carrier tailed to pay a claim made under the policy and, therefore, breached the contract and was guilty of fraud and unfair trade practices. An initial pretrial conference was set and discovery cut-off was to occur on April 2, 2002.
On March 7, 2002, plaintiff's attorney filed a motion to withdraw as representative for plaintiff. The Court, on March 13, 2002, entered an order permitting limited withdrawal and requiring plaintiff to either have a new attorney enter an appearance or else submit to the Court notice of his own pro se appearance within twenty days from the date of that order. plaintiff's former counsel submitted an affidavit showing that the Court's March 13, 2002 order was faxed to plaintiff, mailed to plaintiff by certified mail with a cover letter, and also mailed by regular mail. counsel's affidavit further stated that it was his belief that plaintiff received the letter and order as evidenced from a letter dated March 24, 2002 from plaintiff. While a copy at that letter was allegedly attached to the affidavit, it was not attached to the affidavit which was filed with the Court. (However, perhaps the letter is the one which plaintiff mailed to the Court as noted below.) Nevertheless, this affidavit shows that plaintiff received this Court's order by facsimile transmission and also by certified mail.
Plaintiff did not enter an appearance but did submit a paperwriting dated March 24, 2002 entitled, "Subject: Subpoena in Civil Case 1:01-CV-00931." That correspondence requested additional time to find representation and requested that the matter be placed on hold. Defendants objected to this motion on several grounds. First, defendants noted that plaintiff had not complied with the Court's March 13, 2002 order by entering an appearance. Second, defendants pointed out that this request was an open-ended one and gave no indication concerning when plaintiff would obtain representation in his case. Defendants also requested that the Court dismiss the action because plaintiff failed to comply with the Court's March 13, 2002 order.
In a May 3, 2002 order, the Court recognized defendants' request for dismissal and plaintiff's request for additional time. The Court gave plaintiff to and including May 24, 2002 to comply with the Court March 13, 2002 order and to either have an attorney enter an appearance or else do so himself. plaintiff was again forewarned that failure to comply with the Court's order would lead to dismissal of the action with prejudice. Because discovery had ended and the time for filing dispositive motions had also ended, the Court, on its own, extended the time for filing dispositive motions to and including May 31, 2002.
The last matter in the Court's file is an affidavit from defendant's counsel indicating an attempt to serve defendants' response on plaintiff but that the response had been marked "Refused" along with "Return to sender." Based on the above history, the Court finds that plaintiff has failed to comply with a court order and, therefore, dismissal is appropriate pursuant to Fed.R.Civ.P. 41(b). Discovery has now ended in this case and the matter has already been delayed once because of plaintiff's failure to enter a pro se appearance or else have an attorney enter an appearance in order to represent him. Defendants, although not filing a separate motion, have requested dismissal and noted plaintiff's non-compliance with the Court's orders. In addition, it appears that plaintiff is not receiving communications from defendants.
In this setting, the Court has no choice but to dismiss the action. In making this determination, the Court considers the following factors: (1) whether plaintiff acted in bad faith; (2) the amount of prejudice to defendants; (3) the need for deterrence; and (4) the effectiveness of less drastic sanctions. See Pontoon v. National R.R. passenger Corp., 194 F.R.D. 521 (M.D.N.C. 1999). Starting with the last factor, the Court has already granted an extension of time and yet, has received no response from plaintiff. plaintiff, in tact, is not receiving defendant's mailings. Plaintiff is acting on his own, and whether plaintiff is acting in bad faith or simply has given up pursuing this action eventually amounts to the same thing. The non-compliance is persistent. Defendants are being prejudiced because this case is definitely being delayed on the Court's calendar. The Court has already extended the time for filing dispositive motions once and that time has now past. Defendants continue to incur expenses in this case. In such a situation, there is a need for some deterrence and, unfortunately, it appears that dismissal of this action is the only effective remedy.
IT IS THEREFORE ORDERED that this action is dismissed Z.u.a sponte, and upon defendants' request, for plaintiff's failure to obey this Court's March 13, 2002 and May 3, 2002 orders and for failing to prosecute this action, and that said dismissal is with prejudice.
J U D G M E N T
For the reasons set out in an Order filed contemporaneously with this Judgment,
IT IS THEREFORE ORDERED that this action is dismissed sua sponte, and upon defendants' request, for plaintiff's failure to obey this Court's March 13, 2002 and May 3, 2002 orders and for failing to prosecute this action, and that said dismissal is with prejudice.