Loftin v. Nationwide Mutual Insurance Company a/k/a Nationwide Insurance Companies

Filing 58

ORDER granting 44 Motion to Dismiss for Lack of Prosecution; granting 49 Motion to Seal Document. The Clerk of Court is DIRECTED to remove this matter from the court's trial and pretrial calendars. The Clerk of Court further is DIRECTED not to close this case, pending an order addressing the plaintiffs alleged noncompliance with the order of October 18, 2010 42 . Signed by Senior Judge James C. Fox on 6/14/2011. Copy sent to plaintiff via regular mail. (Edwards, S.)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

NO·7:09-CV-oon8-F
SUSAN A. LOFTIN,
Plaintiff,

v.
NATIONWIDE MUTUAL INSURANCE
COMPANY, ajkja NATIONWIDE
INSURANCE COMPANIES,
Defendant.

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ORDER

This matter is before the court on the defendant's Motion to Dismiss or in the
Alternative for Summary Judgment [DE-44], and on the plaintiffs Motion to Seal [DE-49]. The
defendant's Notice of Non-Compliance [DE-51] has been referred to the Magistrate Judge.
Plaintiffs Motion to Seal [DE-49] is ALLOWED. The Clerk is DIRECTED to maintain
[DE-47] document under seal.
The Memorandum [DE-45] filed in support of the defendant's Motion to Dismiss [DE­
44] cogently and correctly states the procedural history of this litigation and the law applicable
to a party's non-compliance with the Federal Rules of Civil Procedure, the Local Rules
CE.D.N.C.), and orders of the court. In support of defendant's contentions, defense counsel
appended his affidavit and exhibits, including the plaintiffs responses to compelled discovery.
The plaintiffs Response [DE-48] urges the court not to dismiss her lawsuit because she
has been waiting five years for the case to be heard. It is her position that she did, in fact,
comply with all of Magistrate Judge Gates' orders, served on the defendant all requested
discovery by certified mail in a timely manner, and produced all the responses and materials she
can produce. She has not attached any additional exhibits or affidavits in response to the
pending Motion to Dismiss.

Pursuant to Rule 37(b)(2), a court may dismiss a case for failure of a party to comply
with orders of the court. Specifically, "[i]f a party fails to obey an order to provide or permit
discovery the court in which the action is pending may make such orders in regard to the failure
as are just," including "[a]n order dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient party." FED. R. Crv. P. 37(c)(2)(C). See

Porter v. Guarino, 223 F.R.D. 282, 284 (M.D.N.C. 2004) (dismissing a case with prejudice
when plaintiff failed to cooperate in discovery and failed to comply with discovery orders).
District courts are to consider the factors enunciated in Wilson v. Volkswagen ofAmerica, Inc.,
561 F.2d 464 (4 th Cir. 1977), in ruling on a motion to dismiss for non-compliance with discovery.
The court finds that a majority ofthe Wilson factors support dismissal under Rule 37(b)(2V

See Memorandum [DE-45], at pp. 4-6.
Factors informing a court's consideration of a motion to dismiss for failure to prosecute
under Rule 41(b), FED. R. Crv. P., even more strongly support the defendant's motion. See, e.g.,

Calderon v. Aurora Loan Servs., Inc., __ F. Supp. 2d __, 2011 WL 201475, slip op. at *3
(E.D. Va. Jan. 19,2011) (citing McCargo v. Hedrick, 545 F.2d 393, 396 (4 th Cir. 1976) (listing as
factors the court's consideration of the "degree of personal responsibility on the part of the
plaintiff,"2 the "amount of prejudice to the defendant," the record, if any, of "a drawn out history
of deliberately proceeding in a dilatory fashion," and whether "sanctions less drastic than
dismissal" will be effective)); see also Memorandum [DE-45], at pp. 6-7.
By order of April 1, 201:1- [DE-37], the court reviewed the procedural history of the case,
noting the plaintiffs failure to maintain current contact information such that materials

1
While the court declines to find that the plaintiff acted in "bad faith," the remainder
of the Wilson factors lie strongly in the defendant's favor.

2
Plaintiffs attorney was permitted to withdraw from representation by order [DE-12]
of September 24, 2009. Plaintiff failed to obtain substitute counsel within the period allotted,
and all responsibility for prosecuting the action thereafter fell on the plaintiff herself.

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concerning her lawsuit were returned as undeliverable, and considering plaintiffs failure to
comply first with voluntary discovery, then to fully comply with compelled discovery. See id.
Plaintiffs responses to the discovery subject to the Magistrate Judge's motion to compel are
incomplete and otherwise insufficient to require the defendant to continue defending against
plaintiffs allegations. As the party who instituted this lawsuit, it is the plaintiffs responsibility
to diligently prosecute her complaint which includes her full, good faith participation in
discovery.
The record herein reveals that the plaintiff has failed to comply with her responsibilities
as a litigant in this court, or to offer good cause for why she has been unable to do so. Although
the court affords them a generous interpretation where feasible, pro se litigants are subject to
,the rules of court just as are parties represented by counsel. The plaintiff has been afforded the
benefit of liberal construction of her filings and numerous opportunities to satisfy the Federal
and Local Rules, but she has failed without good cause to do so.
Accordingly, the defendant's Motion to Dismiss for Failure to Prosecute [DE-44] is
ALLOWED, as is the plaintiffs Motion to Seal [DE-49]. The Clerk of Court is DIRECTED to
remove this matter from the court's trial and pretrial calendars. The Clerk of Court further is
DIRECTED not to close this case, pending an order addressing the plaintiffs alleged non­
compliance with the order of October 18, 2010 [DE-42].
SO ORDERED.
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This, the

I" day of June, 2011.
J
ESC. FOX
S ior United States District Judge

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