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FITZ v. STOKES AUTOMOTIVE INC., 2:14-cv-03811-DCN-MGB. (2015)

Court: District Court, D. South Carolina Number: infdco20151216e80 Visitors: 5
Filed: Nov. 18, 2015
Latest Update: Nov. 18, 2015
Summary: REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE MARY GORDON BAKER , Magistrate Judge . Plaintiff, represented by counsel at the time, filed the instant action September 29, 2014. ( See Dkt. No. 1.) On August 14, 2015, Plaintiff's counsel moved to be relieved as counsel of record for Plaintiff. ( See Dkt. No. 26.) In that motion, counsel for Plaintiff stated that he sought to withdraw because Plaintiff "has failed to assist in her representation," as counsel "has made numerous attempts by p
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REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

Plaintiff, represented by counsel at the time, filed the instant action September 29, 2014. (See Dkt. No. 1.) On August 14, 2015, Plaintiff's counsel moved to be relieved as counsel of record for Plaintiff. (See Dkt. No. 26.) In that motion, counsel for Plaintiff stated that he sought to withdraw because Plaintiff "has failed to assist in her representation," as counsel "has made numerous attempts by phone since January 2015 . . . to contact the Plaintiff to assist in responding to written discovery requests from the Defendant." (Dkt. No. 26 at 1 of 2.) Counsel detailed his failed attempts at contacting Plaintiff in that motion. (See Dkt. No. 26 at 1-2 of 2; see also Dkt. No. 26-1; Dkt. No. 26-2; Dkt. No. 26-3; Dkt. No. 26-4; Dkt. No. 26-5.)

On September 9, 2015, this Court granted the motion of Plaintiff's counsel to withdraw. (Dkt. No. 29.) That Order stated, inter alia, "Plaintiff has thirty (30) days from the date of this Order to retain new counsel or to indicate her intention to proceed pro se, that is to say that she will represent herself in this matter." (Dkt. No. 29 at 1 of 2.)

When the thirty-day period referenced in the September 9, 2015 Order passed with no response from Plaintiff, the undersigned issued an Order on October 23, 2015, giving Plaintiff until November 12, 2015, to comply with the Order dated September 9, 2015. (See Dkt. No. 34.) The October 23, 2015 Order stated, inter alia,

The Plaintiff is advised that if she fails to respond, this action will be subject to dismissal for failure to prosecute pursuant to Fed. R. Civ. P. 41(b), and for failure to comply with this Court's orders, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and the factors outlined in Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir.1982). See Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989). The dismissal

will be considered an adjudication on the merits, i.e., with prejudice. (Dkt. No. 34 at 1-2.)

Plaintiff failed to respond to the Court's Order dated September 9, 2015; she also failed to respond to the Court's Order dated October 23, 2015. (See Dkt. No. 29; Dkt. No. 34.) Additionally, Plaintiff failed to appear at a November 17, 2015 hearing before the Honorable David C. Norton, the United States District Judge presiding over the case sub judice. (See Dkt. No. 39.)

Based on the foregoing, it appears the Plaintiff no longer wishes to pursue this action. Accordingly, it is recommended that this action be dismissed with prejudice for lack of prosecution and for failure to comply with this Court's orders, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and the factors outlined in Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir.1982). See Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989).

The Clerk of Court shall mail this Report and Recommendation to Plaintiff at 301 Chessington Circle, Summerville, SC 29485 and email a copy of this Order to Plaintiff at dfitz1124@gmail.com, the last known contact information for Plaintiff.

IT IS SO RECOMMENDED.

Source:  Leagle

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