United States ex rel. Peter C. v. Bald Head Island Limited

Filing 920090521

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-2012

UNITED STATES OF AMERICA ex rel. PETER C. CURNIN, Plaintiff - Appellant, v. BALD HEAD ISLAND LIMITED, a Texas limited partnership; MARK D. MITCHELL, general partner; MICHAEL K. MITCHELL, general partner, Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:03-cv-00174-F)

Submitted:

March 26, 2009

Decided:

May 21, 2009

Before MICHAEL, KING, and SHEDD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Frank X. Moore, FRANK X. MOORE & ASSOCIATES, Atlanta, Georgia, for Appellant.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Peter C. Curnin appeals the district court's order

dismissing with prejudice, * for failure to prosecute, his action brought on behalf of the United States under the qui tam

provisions of the civil False Claims Act, 31 U.S.C. §§ 3729-3733 (2006). Although the district court cited no authority for its

order, it appears that it intended to dismiss Curnin's action pursuant to Fed. R. Civ. P. 41(b). A district court has the inherent authority to dismiss a case for failure to prosecute, and Rule 41(b) "provides an explicit basis for this sanction." 33, 34 (4th Cir. 1991). the district the court need must to Doyle v. Murray, 938 F.2d

Because dismissal is a severe sanction, exercise this power with with restraint, public

balancing

prevent

delays

the

sound

policy of deciding cases on their merits.

Dove v. CODESCO, 569

F.2d 807, 810 (4th Cir. 1978) (citing Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir. 1974)). This Circuit therefore requires a

trial court to consider four factors before dismissing a case for failure to prosecute: "(1) the plaintiff's degree of

personal responsibility; (2) the amount of prejudice caused the Because the district court did not specify whether the dismissal was without prejudice, and because the dismissal was not based upon lack of jurisdiction, improper venue, or failure to join a party, the dismissal is with prejudice. Fed. R. Civ. P. 41(b).
*

2

defendant; deliberately

(3)

the

presence in a

of

a

drawn

out

history and (4)

of the

proceeding of

dilatory less

fashion; than

effectiveness

sanctions

drastic

dismissal."

Hillig v. Comm'r of Internal Revenue, 916 F.2d 171, 174 (4th Cir. 1990). Although the district court stated that it dismissed Curnin's action for failure to request issuance of summons or to serve the Defendants within a reasonable amount of time, the record is silent as to whether the district court considered the above factors in dismissing the action with prejudice. have no basis for assessing the district court's ruling. Accordingly, we vacate the dismissal. that, assuming the district court intended to We remand so exercise its Thus, we

authority under Rule 41(b), the court may apply the appropriate four-part prejudice Curnin's analysis is in determining If the whether court we dismissal to with

appropriate. on another

intended that

dismiss court

action

ground,

direct

the

clarify its reasoning.

We express no opinion as to whether

dismissal with prejudice is appropriate under any analysis, as the district court is in the best position to make this

determination in the first instance. seal as moot.

We deny Curnin's motion to

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

3

before

the

court

and

argument

would

not

aid

the

decisional

process. VACATED AND REMANDED

4