United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE
granting Plaintiff's Counsel's Motion to Withdraw,
the Court stayed the instant case for thirty days to allow
Plaintiff to find new counsel or proceed pro se. See
Order, ECF No. 84. The Court directed Plaintiff to file
a statement of intent to proceed pro se or have counsel enter
an appearance by January 25, 2019. See Id. As the
Plaintiff has failed to respond to the Court's Order, the
issue now before the Court is whether Plaintiff has failed to
prosecute his civil action. For the following reasons, the
Court finds that Plaintiff has failed to prosecute this case
and therefore DISMISSES the case without
by counsel, filed a complaint with this Court on February 6,
2018, seeking relief from Defendants Cabell County, Phyllis
Smith, and Beth Thompson. Compl., at 1. In his
complaint, Plaintiff alleges the same three claims against
all Defendants: (1) violation of 42 U.S.C. §1983; (2)
unlawful retaliation in violation of the West Virginia
Whistle-blower Law; and (3) a West Virginia common law claim
for unlawful retaliatory discharge in violation of
substantial public policy, also known as a Harless
claim. Id. at 6, 8, 10, 12.
Court issued a scheduling order in the case, setting trial
for May 21, 2019. See Scheduling Order, ECF No. 22.
On December 6, 2018, Plaintiff's counsel moved to
withdraw from the case, citing Plaintiff's failure to
respond to counsel's repeated attempts to communicate
with him regarding discovery and deadlines in this case.
See Mot. to Withdraw as Counsel, ECF No. 82. The
Court directed Plaintiff to respond within two weeks as to
whether he consented or objected to his counsel's
withdrawal. See Order, ECF No. 83. Plaintiff failed
to respond to the Court's Order, so the Court granted
counsel's motion to withdraw. See Order, ECF No.
84. In that Order, the Court directed Plaintiff to file a pro
se statement of intent to proceed or to have new counsel file
an appearance with the Court by January 25, 2019.
Id. This date has passed without response.
Rule of Civil Procedure 41(b) states that “[i]f 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.” Fed.R.Civ.P. 41(b). This rule
solidifies the principle “that courts must have the
authority to control litigation before them.”
Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989).
Although the rule does not explicitly provide the power for a
court to dismiss a case sua sponte, district courts
have the inherent authority to dismiss a case for failure to
prosecute without waiting for a defendant's motion.
See Link v. Wabash R.R. Co., 370 U.S. 626, 630
(1962) (“Neither the permissive language of the
Rule-which merely authorizes a motion by the defendant-nor
its policy requires us to conclude that it was the purpose of
the Rule to abrogate the power of courts, acting on their own
initiative, to clear their calendars of cases that have
remained dormant because of the inaction or dilatoriness of
the parties seeking relief.”).
considering whether to dismiss a case for failure to
prosecute, the court should consider the following four
factors: “(1) the plaintiff's degree of personal
responsibility; (2) the amount of prejudice caused the
defendant; (3) the presence of a drawn out history of
deliberately proceeding in a dilatory fashion; and (4) the
effectiveness of sanctions less drastic than
dismissal.” Hillig v. C.I.R., 916 F.2d 171,
174 (4th Cir. 1990). These factors, along with the specific
factual circumstances of the case, assist the court in
determining whether dismissal is appropriate.
Ballard, 882 F.2d at 95-96. If a party “has
ignored an express warning that noncompliance with a court
order will result in dismissal, the district court should
dismiss the case.” Bey ex rel. Graves v.
Virginia, 546 Fed.Appx. 228, 229 (4th Cir. 2013) (citing
Ballard, 882 F.2d at 95-96).
Court's last Order, the Court directed Plaintiff to file
a statement of intent to proceed pro se or have an attorney
file an appearance with the Court. See Order, ECF
No. 84. The Court warned that if Plaintiff failed to take
action Defendants could move for appropriate relief.
Id. Although the Order did not directly state that
the appropriate relief would be dismissal, the Court finds
that this warning satisfactorily cautioned Plaintiff that
noncompliance would result in unfavorable consequences. The
Fourth Circuit's four-factor test further supports the
Court's finding that Plaintiff failed to prosecute.
first factor determines whether Plaintiff is personally
responsible for the noncompliance. Dismissing a case is an
inappropriate remedy if the blame falls to a party's
counsel, rather than to the party itself. See
Hillig, 916 F.2d at 174. However, in this case, the
Court has no other evidence to suggest that the blame falls
on anyone but Plaintiff. Plaintiff's counsel had
struggled to communicate with Plaintiff, resulting in the
motion to withdraw as counsel. The Court has issued two
separate orders requiring Plaintiff to individually respond,
but Plaintiff failed to report to the Court. Without other
evidence indicating that Plaintiff is blameless in the
noncompliance, the Court must conclude that Plaintiff is
second factor considers the prejudice to the defendant. Here,
the parties progressed through discovery until communications
with Plaintiff broke down. As a result, Plaintiff has failed
to appear for his scheduled deposition on two separate
occasions. See Mot. to Withdraw as Counsel, at 2. If
Plaintiff were allowed to continue to ignore court orders,
Defendants would continue to be prejudiced during discovery
and preparation for trial. Thus, Plaintiff's complete
lack of communication with the Court and his prior counsel
has caused prejudice to Defendants.
third factor looks to the history of noncompliance in the
case. Here, the Court issued two orders directed specifically
towards Plaintiff. The Court included a reference to
Plaintiff's last known address in the orders to ensure
proper delivery. The Court issued its first order on December
7, 2018, but has not received any communications, in any
form, from Plaintiff. Although there is no evidence in the
record that such conduct is deliberate in nature, the
complete lack of response weighs against Plaintiff.
last factor focuses on other remedies other than dismissal.
The Court could issue other orders to sanction Plaintiff, but
the Court does not find that these remedies would be
sufficient. Monetary sanctions and discovery penalties will
not force Plaintiff to respond to the Court's orders and
prosecute this case in a timely fashion. The Court has given
Plaintiff two chances to communicate directly to the Court,
and Plaintiff chose to ignore these directives. Considering
the four factors and the failure to respond directly to court
orders, the Court finds that the case shall be
DISMISSED for failure to prosecute pursuant
to Rule 41(b). The Court raised the failure to prosecute
issue sua sponte and has no evidence that Plaintiff
acted deliberately or in bad faith, so the Court dismisses
the action without prejudice.