BAKER v. ACCOR NORTH AMERICA, MOTEL 6 OPERATING LP

Filing 19

MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 11/09/2011. RECOMMENDED that Defendant's Motion to Dismiss Plaintiff's Complaint for Failure to Prosecute His Case (Docket Entry 13 ) be GRANTED and that this action be DISMISSED under Federal Rule of Civil Procedure 41(b). Re 13 MOTION to Dismiss filed by ACCOR NORTH AMERICA, MOTEL 6 OPERATING LP.(Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DANNY L. BAKER,
Plaintiff,
v.
ACCOR NORTH AMERICA MOTEL 6
OPERATING LP,
Defendant.

)
)
)
)
)
)
)
)
)
)

1:10CV660

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge for a recommended ruling on Defendant’s Motion to
Dismiss Plaintiff’s Complaint for Failure to Prosecute His Case
(Docket Entry 13). (See Docket Entry dated Apr. 14, 2011; see also
Fed. R. Civ. P. 72(b)(1).)

For the reasons that follow, the Court

should grant Defendant’s instant Motion.
BACKGROUND
This case began when Plaintiff filed a pro se Complaint
(Docket Entry 2), along with an Application for Leave to Proceed In
Forma Pauperis (Docket Entry 1).

The Court granted Plaintiff

pauper status, forwarded him a summons form for completion, and
directed the United States Marshal’s Office to serve the completed
Summons (and Complaint) on Defendant.

(See Docket Entry 4.)

Plaintiff apparently returned the completed Summons, because the
Marshal’s

Office

filed

documentation

reflecting

that

it

made

service of process on Defendant (Docket Entry 7) and Defendant
thereafter answered (Docket Entry 9).
The Court then noticed the Initial Pretrial Conference.
Docket Entry 11.)

(See

This Notice specifically advised the parties as

follows:
Local Rule 16.1(b) provides that the parties must hold
their R. 26(f) conference at least 14 days before the
scheduled initial pretrial conference and submit to the
court their report within 10 days thereafter.
The
scheduled initial pretrial conference is automatically
canceled upon the submission to the court of the Joint
Rule 26(f) Report (LR 16.2). If parties are unable to
reach agreement on a discovery plan and therefore submit
separate Rule 26(f) Reports (LR 16.3), they shall appear
for the scheduled initial pretrial conference.
(Id. at 1 (bold and underlining in original).)
Defendant timely filed an individual Rule 26(f) Report, in
which it related that it had “attempted to contact Plaintiff
regarding the parties’ Rule 26(f) Report.
failed to communicate with Defendant.”

Plaintiff, however,

(Docket Entry 12 at 1.)

Defendant served Plaintiff with said filing.

(See id. at 4.)

Plaintiff did not file an individual Rule 26(f) Report as the
Court’s Local Rule 16.3 requires in the absence of an agreement on
a Joint Rule 26(f) Report (and as the Notice advised). (See Docket
Entries dated Sept. 29, 2010, to present.)

Counsel for Defendant

appeared at the Initial Pretrial Conference, but Plaintiff did not;
the Court thereafter adopted Defendant’s Rule 26(f) Report.
Docket Entries dated Nov. 18, 2010.)

-2-

(See

Defendant subsequently filed the instant Motion, which it
served on Plaintiff.

(See Docket Entry 13 at 3.)

In said Motion,

Defendant requested dismissal under Federal Rule of Civil Procedure
41(b) on the ground that “Plaintiff refused to respond to multiple
attempts to contact him, failed to submit a Rule 26(f) Report,
disobeyed the Court’s order by not attending the Initial Pretrial
Conference, and did not provide his initial disclosures.”
1.)

(Id. at

As to the last of these items, Defendant’s brief (which it

served upon Plaintiff (see Docket Entry 14 at 6)) further reported
that, “[p]ursuant to Fed. R. Civ. P. 26(a)(1)(a), the parties’
initial disclosures were due December 2, 2010.

[Defendant] served

Plaintiff with its initial disclosures on December 2, 2010 . . .
[but Plaintiff] failed to do the same” (Docket Entry 14 at 2).
The Clerk thereafter mailed Plaintiff a letter explaining that
he had “the right to file a 20-page response in opposition to
[Defendant’s instant Motion] . . . accompanied by affidavits
setting out [his] version of any relevant disputed material facts
or [by] . . . other responsive material.”

(Docket Entry 17 at 1.)

The letter specifically cautioned Plaintiff that a failure to
respond “may cause the [C]ourt to conclude that [Defendant’s]
contentions [we]re undisputed and/or that [Plaintiff] no longer
wished to pursue the matter.”

(Id.)

Plaintiff has not responded to the instant Motion.
Docket Entries dated Jan. 24, 2011, to present.)

-3-

(See

DISCUSSION
Under this Court’s Local Rules, a failure to respond to a
motion generally warrants the granting of the relief requested.
See M.D.N.C. R. 7.3(k).

No reason exists to depart from that

general rule in this case.

To the contrary, a review of the

argument and authorities presented by Defendant (see Docket Entry
14 at 2-4) confirms that the Court should dismiss this action.
“The Federal Rules of Civil Procedure recognize that courts
must have the authority to control litigation before them, and this
authority includes the power to order dismissal of an action for
failure to comply with court orders.

Fed. R. Civ. P. 41(b).”

Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989).

Said Rule

also authorizes dismissal “[i]f the plaintiff fails to prosecute,”
Fed. R. Civ. P. 41(b).

In this case, Plaintiff disobeyed the

Court’s Order to appear at the Initial Pretrial Conference (if, as
occurred, he did not reach an agreement on a Joint Rule 26(f)
Report with Defendant) and Plaintiff failed to prosecute this case
in any way since Defendant filed its Answer.

These circumstances

warrant dismissal.
In making this recommendation, the undersigned United States
Magistrate Judge recognizes that “dismissal is not a sanction to be
invoked lightly.”

Ballard, 882 F.2d at 95.

Generally, before

dismissing an action under Federal Rule of Civil Procedure 41(b),
a court should consider: “(i) the degree of personal responsibility

-4-

of

the

plaintiff;

defendant;

(iii)

(ii)

amount

existence

the

the

of

of
a

prejudice

history

of

caused

the

deliberately

proceeding in a dilatory fashion, and (iv) the existence of a
sanction less drastic than dismissal.”

Id.; accord Hillig v.

Commission of Internal Revenue Serv., 916 F.2d 171, 174 (4th Cir.
1990).

In this case, Plaintiff bears sole responsibility for the

instant
inaction

non-compliance
prejudiced

and

failure

Defendant

by

to

prosecute,

depriving

it

Plaintiff’s
of

required

disclosures and by forcing it to appear at the Initial Pretrial
Conference (due to Plaintiff’s failure to confer regarding a Joint
Rule 26(f) Report), Plaintiff has engaged in a pattern of dilatory
conduct, and no other sanction appears feasible or sufficient.
Moreover, the Court specifically warned Plaintiff that his
failure to respond to Defendant’s instant Motion could lead the
Court to determine that he did not dispute Defendant’s contentions
and that he had abandoned the case.

“In view of th[at] warning,

the [Court] ha[s] little alternative to dismissal.

Any other

course would have [the effect of] plac[ing] the credibility of the
[C]ourt in doubt and invit[ing] abuse.”

Id.

The Court previously has ruled dismissal under Federal Rule of
Civil Procedure 41(b) appropriate under analogous circumstances.
See Long v. Becton, Dickinson & Co., No. 1:04CV1111, 2006 WL
473881, at *1-3 (M.D.N.C. Feb. 28, 2006) (unpublished) (Beaty, J.)
(holding that, where “Plaintiff failed to appear for the scheduled

-5-

pre-trial conference and has failed to participate or appear in
this litigation since that time,” including by failing to respond
to a motion to dismiss, “dismissal is also appropriate pursuant to
Rule 41”).
IT IS THEREFORE RECOMMENDED that Defendant’s Motion to Dismiss
Plaintiff’s Complaint for Failure to Prosecute His Case (Docket
Entry 13) be GRANTED and that this action be DISMISSED under
Federal Rule of Civil Procedure 41(b).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 9, 2011

-6-