United States District Court, S.D. West Virginia
MEMORANDUM OPINION & ORDER
T. Copenhaver, Jr. United States District Judge
is the motion to dismiss for failure to participate in
discovery and failure to prosecute, or in the alternative,
motion for summary judgment, filed by defendant on June 20,
Dixon filed this action on May 25, 2016, alleging that she
was discharged by defendant, her employer, in violation of
the West Virginia Human Rights Act. On February 2, 2017,
Richard Walters, counsel for Ms. Dixon, filed a motion to
withdraw as counsel because, despite numerous attempts to
contact her by phone, email, regular and certified mail, he
could not get in touch with her, which rendered him unable to
confer with her on discovery matters. The court set a hearing
on the motion for February 13, 2017, and mailed Ms. Dixon a
copy of the order at 544 Burlew Drive, Charleston, West
Virginia, 25302, and directed her to appear in person.
Plaintiff did not appear at the hearing.
Ms. Dixon's failure to contact Mr. Walters and her
failure to appear at the hearing, the court granted Mr.
Walters' motion to withdraw on February 15, 2017. In that
order, the court directed Ms. Dixon to obtain new counsel by
March 16, 2017, after which time she was presumed to continue
the case on a pro se basis. The court additionally fixed a
new schedule to accommodate the delay caused by
plaintiff's inaction and warned plaintiff that her
failure to comply with the new schedule could subject her
case to dismissal for failure to prosecute.
now asserts that since the court's February 15, 2017
order, no communication from Ms. Dixon has been received,
despite sending a letter to her home address on May 1, 2017.
Def. Mem. at 6. The letter summarized the history of the
proceedings, emphasized Ms. Dixon's obligation to respond
to defendant's first set of discovery, and noted that if
she did not participate in discovery, defendant would seek
dismissal of the case. See Def. Ex. 6.
41(b) of the Federal Rules of Civil procedure provides for
the dismissal of an action for a plaintiff's failure to
prosecute or to comply with the court's rules or orders.
In determining whether such a sanction is warranted, the
court balances the following factors: (1) the degree of
personal responsibility on the part of the plaintiff; (2) the
amount of prejudice to the defendant caused by the delay in
prosecution; (3) the presence or absence of a history of
plaintiff deliberately proceeding in a dilatory fashion; and
(4) the effectiveness of sanctions less drastic than
dismissal. Davis v. Williams, 588 F.2d 69, 70 (4th Cir.
defendant asserts that Ms. Dixon is personally responsible
for the failure to prosecute, such that dismissal of this
action is warranted. Def. Mem. at 15. In support of this,
defendant states that when Ms. Dixon was represented by
counsel, she failed to answer his repeated requests to
respond to discovery, which led to his withdrawal.
Id. Since that time, Ms. Dixon has failed to
prosecute in any way or to respond to defendant's
inquiries. Id. Ms. Dixon has failed to meet the
deadlines contained in the court's February 15, 2017
defendant likewise contends that it is prejudiced by Ms.
Dixon's failure to respond to discovery requests and
additionally have incurred fees and costs in dealing with her
failure to participate in discovery, including fees
associated with conferring with her former counsel.
Id. at 11. Third, defendant asserts that Ms.
Dixon's failure to take any action in the litigation of
this case since before December 2016 evidences dilatory
conduct, which warrants dismissal of this case. Id.
at 17-18. The court additionally notes that Ms. Dixon has
failed to respond to the present motion to dismiss.
defendant does not believe that any sanction other than
dismissal will be effective in that Ms. Dixon last spoke with
her counsel on December 29, 2016, has not responded to any
calls or correspondence, and did not attend the hearing on
the motion to withdraw as directed by the court. Id.
court finds that, when weighing the above factors, dismissal
of the action is warranted for Ms. Dixon's failure to
prosecute the case. As discussed, Ms. Dixon has not been in
contact with her former counsel, opposing counsel, or the
court since December 29, 2016, despite repeated attempts to
contact her. Moreover, the court's February 15, 2017
order granting Mr. Walter's motion to withdraw expressly
warned Ms. Dixon that her case would be subject to dismissal
for failure to prosecute if she did not comply with the new
schedule. See Doc. No. 19.
the court ORDERS that defendant's motion to dismiss be,
and it herby is, granted for plaintiff's failure to
prosecute this action. It is additionally ordered that this
action be, and it hereby is, dismissed without prejudice.
Clerk is directed to transmit copies of this order to all
counsel of record, any unrepresented parties and to plaintiff