Slep-Tone Entertainment Corporation v. Garner et al

Filing 51

ORDER denying 46 Motion to Dismiss; denying 48 Motion to Dismiss. The Court hereby ORDERS that the five severed Defendants against whom new actions have been brought in the U.S. District Court for the Eastern District of North Carolina (Collin Yarbrough, Nona Powers, Stephen Winn, Rick Barefoot, and Steven Perry) are TRANSFERRED to that District. Signed by Senior Judge Graham Mullen on 2/7/2012. (Pro se litigant served by US Mail.) (tmg)[Transferred from North Carolina Western on 2/9/2012.]

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11-cv-00122

SLEP-TONE ENTERTAINMENT
CORPORATION
Plaintiff,
v.
ROBERT MAINVILLE, et al,
Defendants.

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ORDER

THE MATTER comes now before the Court upon Defendants Collin Yarbrough’s and
Steven Penny’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 41(b) [D.I. 46],
and upon Defendant Rick Barefoot’s Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 41(b). [D.I.48]. Plaintiff filed a timely Response in Opposition [D.I. 49] and
Defendants entered a Notice of their intent not to file a reply. [D.I. 50]. The Motions to Dismiss
are ripe for determination and the Court will address these motions together.
I. BACKGROUND
Plaintiff Slep-Tone Entertainment Corporation commenced this action on March 11,
2011, by filing a Complaint against twenty-three individual and corporate Defendants who work
in North Carolina’s karaoke music industry. Several Defendants filed motions to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6). [D.I. 20, 24, 25]. At hearing on those motions, Plaintiff
represented that it was in possession of sworn investigative reports and the Court instructed
Plaintiff to file the reports under seal to supplement its Complaint. Plaintiff complied with the
Court’s instruction to file the investigative reports. [D.I. 33]. The Court, sua sponte, also
instructed Plaintiff to submit additional briefing on the issue of whether joinder of twenty-three

individual and corporate Defendants was proper. Plaintiff and Defendants filed briefs in support
of and in opposition to joinder. [D.I. 34, 36].
On October 6, 2011, the Court entered an Order denying the 12(b)(6) motions to dismiss
on grounds that the Complaint, when reviewed in conjunction with the investigative reports, met
the Twombly and Iqbal standards. [D.I. 37]. The Order also severed the claims against all
Defendants except the first-named Defendant, finding joinder of the twenty-three Defendants
improper. Id. The Court instructed Plaintiff to file separate actions against each of the
remaining Defendants in the venue where the Defendant resides within thirty (30) days or face
dismissal with prejudice of those claims not pursued within the thirty day time period. Id.
On November 7, 2011, Plaintiff filed a Motion for Reconsideration of the October 6
Order [D.I. 38] and Plaintiff filed a Motion for Extension of Time to File an Appeal of the
October 6 Order. [D.I. 39]. The Court granted the Motion for Extension of Time. [D.I. 40]. On
December 5, 2011, Plaintiff filed a Supplemental Status Report notifying the Court that it filed
four (4) new actions against five (5) Defendants in the U.S. District Court for the Eastern District
of North Carolina1 and moving the Court to transfer its severed actions against those Defendants
to the Eastern District of North Carolina. [D.I. 42]. Subsequently, the Court granted in part the
Motion for Reconsideration only to correct a typographical error in the October 6 Order to
clarify that the Plaintiff had thirty days to file the separate actions against remaining Defendants.
[D.I. 45].

1

The four new actions are: (1) Slep-Tone Entertainment Corporation v. Yarbrough et al.,
No. 5:11-cv-695-BO, naming Defendant Collin Yarbrough; (2) Slep-Tone Entertainment
Corporation v. Powers et al., No. 5:11-cv-696-BO, naming Defendants Nona Powers and
Stephen Winn; (3) Slep-Tone Entertainment Corporation v. Barefoot et al., No. 5:11-cv-698-D,
naming Defendant Rick Barefoot; and (4) Slep-Tone Entertainment Corporation v. Penny et al.,
No. 5:11-cv-701-BO, naming Defendant Steven Penny.

II. LEGAL STANDARD
Fed. R. Civ. P. 41(b) states:
If 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. Unless the
dismissal order states otherwise, a dismissal under this subdivision (b) and any
dismissal not under this rule - except one for lack of jurisdiction, improper venue,
or failure to join a party under Rule 19 - operates as an adjudication on the merits.
The Fourth Circuit recognizes the authority that Rule 41(b) gives courts “to control
litigation before them, and this authority includes the power to order dismissal of an action for
failure to comply with court orders.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989).
“[D]istrict courts must be allowed sufficient disciplinary authority to control their dockets.
Without the ability to exact significant penalties when parties ignore court orders, district courts
would be left with nothing but hollow threats of dismissal.” Heyman v. M.L. Marketing Co., 116
F.3d 91, 96 (4th Cir. 1997).
Dismissal is a severe sanction that should not be invoked lightly. Davis v. Williams, 588
F.2d 69, 70 (4th Cir. 1978). A District Court must consider four factors in determining whether
to dismiss a claim with prejudice under Rule 41(b): (i) the degree of personal responsibility on
the part of the Plaintiff; (ii) the amount of prejudice to the Defendant caused by the delay; (iii) a
clear record of delay or contumacious conduct by the Plaintiff; and (iv) the effectiveness of
sanctions less drastic than dismissal. Ballard, 882 F.2d at 95 (internal quotation marks omitted);
see Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982).
The four factors discussed in Chandler, however, are not a rigid four-pronged test and the
propriety of a dismissal of the type involved here depends on the particular circumstances of the
case. Ballard, 882 F.2d at 95. A District Court need not engage in a rigid application of this test
when a litigant ignores an express warning that failure to comply with an Order will result in the

dismissal of his claim. Id at 95-96; see Tolliver v. Northrop Corp., 786 F.2d 316, 319 (7th Cir.
1986) (noting importance of warning prior to dismissal); Davis, 588 F.2d at 71 (same). The
requirement for an express warning is explained in Choice Hotels Intern., Inc. v. Goodwin &
Boone, 11 F.3d 469, 473 (4th Cir 1993):
[This Court] holds only that when district courts choose to impose such
conditions on plaintiffs and to enforce them with the “harsh sanction” of
prejudicial dismissal, Chandler Leasing Corp., 669 F.2d at 920, they must make
the threat of this sanction explicit and clear so that there can be no question, as
there is in this case, as to whether a plaintiff who did not satisfy the conditions
understood that, by not satisfying them, he faced prejudicial dismissal. This
explicit and clear notice is demanded both by fairness to the plaintiff and by the
“sound public policy of deciding cases on their merits,” Herbert v. Saffel, 877
F.2d 267, 269 (4th Cir. 1989) (quotation omitted), and poses no significant burden
on district courts.
III.

ANALYSIS

Defendants make the following argument in favor of dismissal of Plaintiff’s claims with
prejudice pursuant to Rule 41(b): (1) that the Court’s Order provided Plaintiff clear and explicit
warning, and Plaintiff failed to comply with the Order; and (2) that the Chandler/Ballard test
weighs in favor of dismissal. [D.I. 47, 48-1].
The Court finds it unnecessary to engage in the four-part Chandler/Ballard test. Rather,
the Court notes that Plaintiff sufficiently complied with the terms of the October 6 Order insofar
as Plaintiff initiated several new actions in the U.S. District Court for the Eastern District of
North Carolina and paid the requisite filing fees for those actions. Plaintiff did file a timely
Motion for Reconsideration of the October 6 Order and a timely Motion for Extension of time in
which to file an appeal of that Order. Furthermore, if Plaintiff filed a motion for extension of
time in which to comply with the terms of the October 6 Order, then the Court would have been
inclined to grant such a motion.

Here, the Court finds it prudent to follow the “sound public policy of deciding cases on
their merits.” Choice Hotels, 11 F.3d at 473; quoting Herbert, 877 F.2d at 269. Accordingly,
the Defendants’ Motions to Dismiss are DENIED. The Court hereby ORDERS that the five
severed Defendants2 against whom new actions have been brought in the U.S. District Court for
the Eastern District of North Carolina are TRANSFERRED to that District.
IT IS SO ORDERED.
Signed: February 7, 2012

2

Those Defendants are Collin Yarbrough, Nona Powers, Stephen Winn, Rick Barefoot,
and Steven Perry.