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HERNASY v. USPS GREENVILLE SC PROCESSING AND DISTRIBUTION CENTER, 6:15-cv-02587-MGL-JDA. (2015)

Court: District Court, D. South Carolina Number: infdco20150918986 Visitors: 2
Filed: Aug. 28, 2015
Latest Update: Aug. 28, 2015
Summary: REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE JACQUELYN D. AUSTIN , Magistrate Judge . Plaintiff brought this action in the Greenville County Summary Court seeking to recover wages allegedly not paid to her; Defendant removed the action to this Court. [Doc. 1.] On July 8, 2015, Defendant filed a motion to dismiss. [Doc. 11.] By Order of this Court on July 9, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the summary judgment/dismissal pro
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REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

Plaintiff brought this action in the Greenville County Summary Court seeking to recover wages allegedly not paid to her; Defendant removed the action to this Court. [Doc. 1.] On July 8, 2015, Defendant filed a motion to dismiss. [Doc. 11.] By Order of this Court on July 9, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the summary judgment/dismissal procedure and the possible consequences if she failed to respond adequately. [Doc. 12.] Despite this explanation, Plaintiff failed to respond to the motion.

As Plaintiff is proceeding pro se, the Court filed an Order on August 14, 2015 giving Plaintiff through August 24, 2015, to respond to the motion to dismiss. [Doc. 16.] Plaintiff was specifically advised that if she failed to respond, this action would be dismissed for failure to prosecute. [Id.] However, Plaintiff has failed to respond to the motion.

Based on the foregoing, it appears Plaintiff no longer wishes to pursue this action. "The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them, and this authority includes the power to order dismissal of an action for failure to comply with court orders." Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed. R. Civ. P. 41(b)). "Federal courts possess an inherent authority to dismiss cases with prejudice sua sponte." Gantt v. Md. Div. of Corr., 894 F.Supp. 226, 229 (D. Md. 1995) (citing Link v. Wabash R. Co., 370 U.S. 626 (1962); White v. Raymark Indust., Inc., 783 F.2d 1175 (4th Cir. 1986); Zaczek v. Fauquier Cnty., Va., 764 F.Supp. 1071, 1074 (E.D. Va.1991)).

The Fourth Circuit, in Davis v. Williams, recognizing that dismissal with prejudice is a harsh sanction that should not be invoked lightly, set forth four factors for determining whether Rule 41(b) dismissal is appropriate:

(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 presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal.

588 F.2d 69, 70 (4th Cir. 1978) (citing McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)). Subsequently, however, the Fourth Circuit noted that "the four factors . . . are not a rigid four-pronged test," and whether to dismiss depends on the particular circumstances of the case. Ballard, 882 F.2d at 95. For example, in Ballard, the court reasoned that "the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case from those cited by appellant.... In view of the warning, the district court had little alternative to dismissal. Any other course would have placed the credibility of the court in doubt and invited abuse." Id. at 95-96.

As Plaintiff is proceeding pro se, she is personally responsible for her failure to file a response. Plaintiff has had over fifty days to respond to the motion to dismiss. Plaintiff's initial response was due by August 13, 2015 and, despite being advised of the possible consequences if she failed to adequately respond, Plaintiff elected not to respond. The Court filed a second Order, reminding Plaintiff a response was due and giving her additional time—until August 24, 2015—to respond. The Court has warned Plaintiff the case would be dismissed pursuant to Rule 41(b) if Plaintiff failed to file a response. Despite this explanation, Plaintiff has elected not to respond. Because Plaintiff has already ignored Court Orders and deadlines, sanctions less drastic than dismissal would not be effective.*

Wherefore, based upon the foregoing, the Court recommends the case be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b).

IT IS SO RECOMMENDED.

FootNotes


* Indeed, since this action was removed to this Court from the Greenville County Summary Court on June 29, 2015, Plaintiff has failed to file anything in the case, including pro se party's answers to Rule 26.01 interrogatories despite being instructed to do so by Order dated June 30, 2015 [Doc. 8].
Source:  Leagle

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