Robert Bolus v. Fleetwood RV, Inc.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:12-cv-00898-NCT-JLW. Copies to all parties and the district court. [999802677]. [15-1922]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1922

ROBERT BOLUS,
CENTER,

individually,

and

d/b/a

BOLUS

TRUCK

SALES

Plaintiff - Appellant,
v.
FLEETWOOD RV, INC.; TOM JOHNSON CAMPING CENTER CHARLOTTE,
INC.; CUMMINS ATLANTIC, LLC,
Defendants - Appellees.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cv-00898-NCT-JLW)

Submitted:

March 31, 2016

Decided:

April 25, 2016

Before WYNN, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Norman B. Smith, SMITH, JAMES, ROWLETT & COHEN, LLP, Greensboro,
North Carolina, for Appellant. Reid Calwell Adams, Jr., Travis
L. Wherry, WOMBLE CARLYLE SANDRIDGE & RICE, LLP, Winston-Salem,
North Carolina; Valerie B. Mullican, BARNES & THORNBURG LLP,
Grand Rapids, Michigan; Marc E. Gustafson, ESSEX RICHARDS, P.A.,
Charlotte, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert Bolus and Bolus Truck Sales & Center, Inc. (Bolus)
appeal

the

district

court’s

order

dismissing

his

suit

for

failure to comply with an order to pay Appellees’ attorney’s
fees.

The district court found that Bolus’ failure to take any

action for five months after the case was transferred from the
Middle

District

of

Pennsylvania

led

Appellees

to

incur

litigation costs, and ordered Bolus to pay Appellees’ reasonable
attorney’s
motions

fees

to

“incurred

dismiss

therefrom.”

and

in

bringing

all

and

matters

litigating

reasonably

their

stemming

The court also found that Bolus was required to re-

serve process on two Appellees, but granted his request for an
extension

of

time

to

complete

this

service,

conditioned

on

Bolus’ payment of the attorney’s fees.
Appellees
fees.

requested

a

total

of

$35,415.70

in

attorney’s

Bolus moved for reconsideration of the sanctions order,

arguing that he could not afford to pay this amount.

Bolus also

stated that if the court denied his motion, he would seek an
immediate appeal of the fee award under Fed. R. App. P. 5.

The

court denied the motion to reconsider, found that “Bolus has
elected not to pay attorneys’ fees” as ordered, and dismissed
the

case

pursuant

to

Fed.

37(b)(2)(A)(v).

2

R.

Civ.

P.

16(f)(1)

and

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Rule 16(f)(1) authorizes sanctions under Fed. R. Civ. P.
37(b)(2)(A)(ii)-(vii), including dismissal, “if a party or its
attorney: (A) fails to appear at a scheduling or other pretrial
conference;

(B)

is

substantially

unprepared

to

participate—or

does not participate in good faith—in the conference; or (C)
fails to obey a scheduling or other pretrial order.”
Civ. P. 16(f)(1), 37(b)(2)(A)(v).

Fed. R.

The Rule also authorizes the

court to require the noncomplying party “to pay the reasonable
expenses—including

attorney’s

fees—incurred

noncompliance with this rule.”
review

a

dismissal

under

because

of

any

Fed. R. Civ. P. 16(f)(2).

Rule

37

for

abuse

of

We

discretion.

Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 40 (4th
Cir. 1995).

Bolus argues that no sanctions were appropriate

because he did not violate a court order and that any violation
did not warrant sanctions because it was caused by the court’s
erroneous implication that Bolus could not represent himself. *
Because Bolus failed to comply with the court’s November
19, 2012, scheduling order and Local Rule 16.1(b), we conclude
that

sanctions

were

authorized

*

under

Rule

16(f).

We

also

Bolus also argues that re-service of process was
unnecessary.
We do not reach this issue because the district
court dismissed the case for failure to comply with court
orders, not for lack of service of process, and we conclude that
disposition of this issue would not affect the outcome of this
case.

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conclude that the district court did not abuse its discretion in
finding that Bolus’ failure to exercise greater diligence in
seeking

local

counsel

warranted

sanctions.

Although

Bolus

argues that he would have appeared pro se had he known this was
an option, Bolus Truck is a corporation, and “may appear in the
federal courts only through licensed counsel.”
Men’s Colony, 506 U.S. 194, 201-02 (1993).

Rowland v. Cal.
Moreover, Bolus’

belief that he could not represent himself does not explain his
failure to seek local counsel in the months prior to January
2013 after Pennsylvania counsel failed to promptly do so.
Accordingly, we affirm the district court’s judgment.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.
AFFIRMED

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