United States District Court, S.D. West Virginia, Charelston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is the defendant Dolgencorp, LLC's
Amended Motion to Dismiss [ECF No. 14] filed on November 22,
2016. The plaintiff did not file a response. For
the reasons given below, the defendant's Motion is
March 16, 2016, this case was removed to federal court from
the Circuit Court of Kanawha County, West Virginia. Notice of
Removal [ECF No. 1]. According to the Complaint, on December
2, 2013, the plaintiff entered a Dollar General store in
Marmet, West Virginia, where she selected certain items and
proceeded to the check-out counter. Notice of Removal Ex 1,
at ¶ 3 [ECF No. 1-1] (“Compl.”). The
plaintiff alleges that a store employee at the check-out
counter threw the plaintiff's change at her. Compl.
¶ 4. After the plaintiff left the store and entered the
parking area, the plaintiff alleges that the same store
employee “violently attacked” her from behind,
and a person from across the street intervened. Compl. ¶
6. According to the Complaint, the Dollar General store's
manager witnessed the incident and failed to intervene.
Compl. ¶¶ 5-8. The plaintiff states that as a
“direct and proximate result of the negligent, reckless
and/or intentional acts of defendant company's employees,
plaintiff has suffered personal injuries, pain and suffering,
medical expenses and has otherwise been humiliated and
embarrassed.” Compl. ¶ 9.
defendant asks the court to dismiss the plaintiff's
claims against it pursuant to Rule 26, 37, and
41(b) of the Federal Rules of Civil Procedure
because the plaintiff has failed to abide by applicable
discovery rules, including failing to attend her own
deposition and failing to respond to discovery requests. Am.
Mot. 1- 2.
district court may dismiss an action for lack of prosecution,
either upon motion by a defendant pursuant to Federal Rule of
Civil Procedure 41(b) or on its own motion.”
McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir.
1976). “The authority of a federal trial court to
dismiss a plaintiff's action with prejudice because of
his failure to prosecute cannot seriously be doubted. The
power to invoke this sanction is necessary in order to
prevent undue delays in the disposition of pending cases and
to avoid congestion in the calendars of the District
Courts.” Link v. Wabash R.R. Co., 370 U.S.
626, 629-30 (1962). The Supreme Court has determined that
this power “has been expressly recognized in Federal
Rule of Civil Procedure 41(b).” Id. at 630.
Rule 41(b) of the Federal Rules of Civil Procedure states the
If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the
action or any claim against it. Unless the dismissal order
states otherwise, a dismissal under this subdivision (b) and
any dismissal not under this rule-except one for lack of
jurisdiction, improper venue, or failure to join a party
under Rule 19-operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b). The Fourth Circuit requires a district
court to evaluate four factors before dismissing a case under
First, the court must consider the “degree of personal
responsibility on the part of the plaintiff.” Second,
it must determine the “amount of prejudice to the
defendant.” Third, it must look to the record to see if
it indicates “a drawn out history of deliberately
proceeding in a dilatory fashion.” Finally, the court
must consider whether “sanctions less drastic than
dismissal” will be effective.
Richardson v. Boddie-Noell Enters., Inc., 78 F.
App'x 883, 888 (4th Cir. 2003) (citing McCargo,
545 F.2d at 396).
defendant argues that the plaintiff has not tendered her
initial disclosures pursuant to Rule 26(a)(1), which were due
to the defendant on June 10, 2016. Mem. Supp. Am. Mot. 2 [ECF
No. 15]; Order & Notice 2 [ECF No. 3]. Moreover, the
defendant points out that the discovery deadline for this
case was November 2, 2016, but the plaintiff has not
responded to any of the defendant's discovery requests
and has failed to appear at her own deposition. Mem. Supp.
Am. Mot. 2-3. The plaintiff's counsel has stated the
I can represent to the court that my most recent mail sent to
Ms. Sandy has been returned to me undeliverable. This has
occurred before also. At this point, I do not know a good
address for Ms. Sandy, nor have I ...