NEAL v. BOSTON

Filing 20

MEMORANDUM OPINION AND RECOMMENDATION as to WILBERT ANTHONY NEAL, signed by MAG/JUDGE JOE L. WEBSTER on 10/28/2016, that for the reasons set forth above, RECOMMENDED that Plaintiff's motion to amend the complaint and to add parties (Docket Entry 17 ) be DENIED. FURTHER RECOMMENDED that Plaintiff's case be DISMISSED with prejudiced. Re 3 Complaint. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
!øILBERT ANTHONY NE,AL,

)
)
)
)

Plaintiffs,

v

)
)
)
)
)
)

HAROLD BOSTON,
Defendants

1,:'14CY1,070

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court upon Plaintiff ìØilbert Anthony Neal's motion to
amend the complaint and to add

paties. (Docket Enty 17.) On December 18, 201,4, prl

re

Plaintiff filed a complaint in this action asserting an employment discrimination claim against
þro

se

Defendant Harold Boston.

pocket Entry 3.) On March 11,2016, Plaintiff filed

a

motion for leave to fìle an amended complaint. Q)ocket Entry 16.) Plaintiff did not include
a proposed amended complaint; thus, the

and allowed Plaintiff additional time
consideration.

Court denied Plaintiffs motion without prejudice,

to

submit a motion

to

amend

for the

Court's

(fext Order dated 4/1,8/20'16.) Plaintiff thereafter submitted a motion to

amend (Docket

E.try

1,7), and

the Court subsequently scheduled the matter for a headng.

Q)ocket E.tt y 18.) Both parties were mailed a copy of the hearing notice. A hearing was held

on September 20, 2016, and neither Plaintiff nor Defend^nt appe red at the hearing. The
Court rescheduled the matter for October 1.9, 201.6, at 9:30

a.m. (Docket Entry 19.)

Defendant appeared for the hearing. However, Plaintiff failed to
been considerate

^ppeat.

Plaintiff has not

of Defendant's and the Court's time and resources. Thus, the Court

recommends that Plaintiffs motion to amend the complaint and to add parties (Docket Enfty
17) be dismissed with prejudice.

In

addition, Plaintiffs action should be dismissed with preiudice

for failure to

prosecute. "The Court has authority to dismiss this action, with prejudice, upon its own
motion, fot Plaintifls failure to prosecute and to comply with court orders." Mediti898,Inc.
Nley Ltd.,No.2:12CY317,2014WL

k

41.99790, at

*2

@,.D. Va. ,{.ug. 22,2014);

Co., 370 U.S. 626, 629-30, (1962) ("The authority

of a federal

Link

:r:ial court

plaintifls action with prejudice because of his failure to prosecute cannot seriously

u.

u. If,/abash

to dismiss

a

be doubted.

The power to invoke this sanction is necessary in order to prevent undue delays . . . and to
avoid congestion"). According to the Supreme Court

the authority of a court to dismiss sua sponte for lack of prosecution has
generally been considered an 'inherent power,' governed not by rule or statute
but by the conffol necessarily vested in coutts to manage their own affairs so as
to achieve the ordedy and expeditious disposition of cases.

Unk,370 U.S.
States

^t

630-31, (internal citation omitted). ,{dditionally, pursuant to the United

District Court for the Middle District of North Carohna

"if

.,.

^n

attofney ot

^

party

fails to comply with a local rule of this Court," the Court is authorized "to dismissI the action

or

^try

part thereof." L.R. 83.a(a)(3). "A dismissal with prejudice is a harsh sanction which

should not be invoked lightly in view of the sound public policy of deciding cases on their

merits." Dauis u. Il/i//iam¡,588 F.2d 69,70 (4th Cir. 1,978) (internal citations and quotations
omitted). The court should generally consider four factors when deciding whether to dismiss

for failure to prosecute: "(1) the degree of personal responsibility on the part of the plaintiff;
Q) the amount of prejudice to the defendant caused by the delay; (3) the presence or absence
of

a

dtawn out history of deliberately proceeding in a dllatoty fashion; and (4) the effectiveness
2

of

sanctions less drastic than dismissal." Dauis, 588 F.2d at 70 (citations and quotations

omitted).
Considering the four factors above, the Court should dismiss Plaintiffls case. First, in
consideting the degree of personal responsibility on the part of Plaintiff, the Court finds that

it is entirely Plaintiffs conduct that has tesulted in a failure to prosecute. Plaintiff filed

an

amended complaint but failed to follow the local rules by not attaching a proposed amended

complaint as insuucted by the Court. The Court allowed Plaintiff to remedy this defect but
he failed to do so. Furthermore, Plaintiff has failed to appeâr at two hearings. Medici999, Inc.
u.

Nley Ltd.,No.

2:1,2CY31,7

,201,4WL

41,99790, at

*3 (E.D. Va. Aug. 22,2014) (finding that

the tesponsibility for the delay in prosecution rests entirely with the plaintiff because his
counsel "indicated that, alter the Court denied Plaintiffs motion for default judgment, Plaintiff

refused to authorize fhis counsel] to either further prosecute or dismiss the Complaint').
Thus, responsibility for the delay in prosecution rests entirely with Plaintiff.

Second, Plaintiff has ptejudiced Defendant by not complying with court orders.
During the last hearing Defendant traveled from Columbia, South Carolrna to Dutham, North

Caroltna. Plaintiffs failure to

appeaLr has

cost Defendant time and money. Thus, Plaintiff

has unduly prejudiced Defendant.

Thfud, there is a presence of a drawn out history of deliberately proceeding in a dllatory

fashion. As stated above, Plaintiff has failed to propedy file an amended complaint, ignored
court ordets to

^ppeair

and has ceased all contact with the Court. 1/. (finding that there was a

history of delibetately proceeding in a dilatory fashion because the "plaintiff . . . refused to
permit counsel to further prosecute or dismiss the Complaint, ceased all communication with

a

J

counsel and the Court, and ignoted court orders

to

appezit and rctain new counsel'). Thus,

the Court fìnds that Plaintiff has proceeded in a dllatory fashion.
Lastly, the Court finds that it is unlikely that any sanction "less drastic than dismissal"

would be effective. Id. at4. Plaintiff has not complied with numerous court orders and has
been outright unresponsive. Thus, the Coutt concludes that dismissal is the appropriate

sanction. Porter u. Curtrino,223 F.R.D.282,284 G\4.D.N.C. 2004) (concluding that dismissal
was the appropriate sanction because "there ha[d] been total non-cooperation by plaintiffs
counsel . . . thete has been a history of delay, and defendant has suffered great preiudice")

CONCLUSION
For the reasons set forth above,

IT IS THERFORE RECOMMENDED

that

Plaintifls motion to amend the complaint and to add parties pocket E.rry 17)be DENIED

IT IS FURTHER RECOMMENDED

that Plaintiffs case be DISMISSED with

prejudiced.

Joe L. Webster
United States Magistrate Judge

ffi

october
zora
Durham, North Carolina

4