United States District Court, S.D. West Virginia, Huntington Division
C. CHAMBERS, UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiffs' Unopposed Motion to
Dismiss With Prejudice the Individual Claims of Samira Dahbi
and Abderahmane Eloirzazi Individually and on Behalf of His
Minor Child, Alexander Eloirzazi (“the Motion”).
ECF No. 162. Plaintiffs, through counsel, in the Motion and
in the attached affidavit, detailed the lengths to which
counsel went in order to contact the three individual
plaintiffs named in the motion (“the three
plaintiffs”). Plainttifs' counsel sent newsletters
and other requests and updates to the file addresses for the
three plaintiffs, attempted to call them, visited their last
known place of employment, used social media to try contact
them, ran online searches through TLO and Persopo, and drove
to other possible addresses discovered during the search.
Unopposed Mot. to Dismiss With Prejudice the Individual
Claims, Ex. A, ECF No. 162-1, at 1-2. However, the three
plaintiffs could not be contacted despite these reasonably
extensive efforts of their counsel. This stands in stark
contrast to counsel's ability to stay in contact with the
468 other individual plaintiffs. Unopposed Mot. to
Dismiss With Prejudice the Individual Claims,
ECF No. 162, at 1. Defendants do not oppose the motion to
dismiss the individual claims of the three plaintiffs.
the Motion does not cite to a particular rule, the Court
treats it as requesting involuntary dismissal for failure to
prosecute pursuant to Fed. R. Civ. P. 41(b). See
Andes v. Versant Corp., 788 F.2d 1003, 1037 (4th Cir.
1986) (providing that the district court's order could
have been based upon either Rule 41(a)(2) or Rule 41(b)).
Rule 41(b) provides, in part, that “if the plaintiff
fails to prosecute . . ., a defendant may move to dismiss the
action.” Fed. R. Civ. P. 41(b).
Furthermore, “unless the dismissal order states
otherwise” a dismissal under the rule “operates
as an adjudication on the merits.” Id. The
dismissal of a claim under Rule 41(b) falls within the
discretion of a district court. See Davis v.
Williams, 588 F.2d 69, 70 (4th Cir. 1978) (analyzing a
district court's Rule 41(b) dismissal under the abuse of
a claim with prejudice under Rule 41(b) “is a harsh
sanction which should not be invoked lightly in view of
‘the sound public policy of deciding cases on their
merits.'” Herbert v. Saffell, 877
F.2d 267, 269 (4th Cir. 1989) (citing Davis, 588
F.2d at 70). In deciding whether dismissal with prejudice is
appropriate the district court must consider four factors:
(1) the degree of personal responsibility of the plaintiff;
(2) the amount of prejudice caused the defendant; (3) the
existence of a ‘drawn out history of deliberately
proceeding in a dilatory fashion;' and (4) the existence
of sanctions less drastic than dismissal.
Id. (applying the Davis factors to Rule
41(b) and finding that the District Court abused its
discresion). Applying these factors, as explained below, the
Court believes that dismissal of the three plaintiffs'
claim with prejudice would be inappropriate. The defendant
can be adequately protected from any prejudice by dismissing
the three plaintiffs' claims without prejudice, but with
first factor weights in favor of dismissing with prejudice.
It is clear from the Motion and the accompanying affidavit
that the three plaintiffs are personally responsible for the
failure to stay in contact with their attorneys. Counsel
outlined the extensive efforts they undertook to get in
contact with the three plaintiffs. Unopposed Mot. to
Dismiss With Prejudice the Individual Claims, Ex. A, at
1-2. However, these efforts were fruitless. Plaintiffs'
counsel not only has demonstrated diligence in attempting to
get in contact with the three plaintiffs, but also has
demonstrated the capacity to successfully keep in contact
with the other 468 plaintiffs. These facts lead the Court to
determine that the three plaintiffs are responsible for the
failure to prosecute their claims.
second factor, prejudice to the defendant, likewise weights
in favor of dismissing with prejudice. As noted in the
Motion, the inability to contact the three plaintiffs
“could jeopardize” a proposed settlement with one
of the defendants. Unopposed Mot. to Dismiss With
Prejudice the Individual Claims, at 1. Risking a
defendant's attempt to resolve the matter without
additional costs of litigation constitutes a prejudice to the
defendant. See U.S. v. Merrill, 258 F.R.D. 302, 309
(E.D. N.C. 2009) (finding that a delay caused by a party that
affected that defendants' ability to settle, in part,
weighed in favor of the second Davis factor and was
prejudicial to the defendants). The defendants were also
prejudiced by the delay in the settlement process caused by
the three plaintiffs' failure to respond to, stay in
communication with, and provide their updated information to,
their counsel. See Id. These delays increase the
cost of litigation, further jeopardizing the already
threatened potential settlement. These settlement risks and
delays caused by the three plaintiffs, when viewed in the
context of this nearly two year-long course of litigation,
prejudices the defendants.
third factor, the existence of continuing deliberate delay in
litigation, does not weight in favor of dismissing with
prejudice. In this case, the defendants have not alleged that
the plaintiffs, through their counsel, have acted in a
deliberately dilatory fashion. In addition to plaintiffs'
counsel searching at length to locate and contact the three
plaintiffs, plaintiffs' counsel filed the motion to
dismiss currently pending before the Court. To this point,
the diligence of plaintiffs' counsel has largely
prevented the possible unduly delay in proceedings that could
have been caused by the inaction of the three plaintiffs. If
allowed to continue, the three plaintiffs' lack of action
would likely cause the type of dilatory litigation this
factor contemplates. However, even if litigation because
lagged due to the three plaintiffs, there is no showing that
the three plaintiffs have deliberately failed to keep in
contact with, or be available to, their counsel. To assume
that the three plaintiffs deliberately have been
incommunicado would reach beyond what has been provided to
whole, the first three factors weight in favor of dismissing
the three plaintiffs' claims with prejudice. But
consideration of the fourth factor, whether a less serious
alternative exists, counsels against such a harsh sanction in
this case. Determining whether a less drastic alternative
exists is potentially the most important factor in this
analysis. Herbert, 877 F.2d at 270 (“Most
importantly, we see no evidence that the district court
considered other, less drastic, sanction to compel compliance
. . . .”).
Court finds that dismissing the three plaintiffs' claims
without prejudice, but with a condition, will adequately
protect the risk of prejudice to the defendant, while also
allowing for a less severe sanction. The Fourth Circuit has
recommended that dismissals with conditions “should be
imposed as a matter of course in most cases.” Davis
v. USX Corp., 819 F.2d 1270, 1276 (4th Cir. 1987).
Specifically, this Court finds dismissing without prejudice
is appropriate on the condition that in any subsequent
action, defendants are hereby permitted to use discovery
material developed in this case regarding the claims that the
three plaintiffs had. This largely protects the defendants
from prejudice by saving the defendants the cost of
duplicating what has been already accomplished in this
litigation. This also protects the three plaintiffs from the
harshness of a dismissal with prejudice, while still
punishing them for failing to do what is most basic for a
client in litigation: return your lawyer's calls. Where
the Court has not found evidence that the three plaintiffs
deliberately avoided their lawyers in order to delay
proceedings, this less drastic course of action is
appropriate. Additionally, the Fourth Circuit has approved of
this type of future discovery condition. See id.
this Court GRANTS the motion and
DISMISSES WITHOUT PREJUDICE the individual
claims of Samira Dahbi and Abderahmane Eloirzazi individually
and on behalf of his minor child, Alexander Eloirzazi. As a
condition of this dismissal without prejudice, the defendants
are hereby permitted to use any discovery material developed
in connection with this case in any subsequent action
concerning the facts that gave rise to the three
plaintiffs' current claims.
Court DIRECTS the Clerk to send a copy of
this Order to counsel of record and ...