NEAL v. CUTTER GROUP FINANCIAL et al

Filing 17

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 01/19/2016, that the Court dismiss this actionwithout prejudice.(Taylor, Abby)

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

CRYSTAL NEAL,
Plaintiff,
v.
CUTTER GROUP FINANCIAL and
SAM ROTH,
Defendants.

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1:15CV578

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff filed a Complaint (Docket Entry 2), along with an
Application for Leave to Proceed In Forma Pauperis (Docket Entry
1). By Order dated August 13, 2015, the Court (per the undersigned
United States Magistrate Judge) granted pauper status and directed
Plaintiff to promptly return properly-completed summons forms.
(Docket Entry 4.)

That Order expressly warned Plaintiff that a

failure to comply would result in dismissal of this action.
id. at 1.)

(See

As shown in a prior Text Order, Plaintiff failed to

provide properly-completed summons forms, thus preventing timely
service of process.

(See Text Order dated Dec. 14, 2015.)

Via

that Text Order, the Court gave Plaintiff yet another opportunity
to explain her foregoing failure(s) and/or to show why the Court
should not dismiss this action.

(Id.)

Again, Plaintiff received

notice that dismissal would result, if (by January 13, 2016) she
did not file a memorandum showing cause why dismissal should not

occur.

(Id.)

Text Order.

Plaintiff did not file a timely response to that

(See Docket Entries dated Dec. 14, 2015, to present.)

“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).

In

this case, [Plaintiff] failed to respond to a specific directive
from the court.”
1989).

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

As a result, the Court should dismiss this action.

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

Id.

Generally, before dismissing an action for failure

to comply with an order, a court should consider:

“(i) the degree

of personal responsibility of the plaintiff; (ii) the amount of
prejudice caused the defendant; (iii) the existence of a history of
deliberately

proceeding

in

a

dilatory

fashion,

and

existence of a sanction less drastic than dismissal.”

(iv)
Id.

the

Here,

no reason exists to doubt that Plaintiff bears responsibility for
the non-compliance, Plaintiff’s inaction prejudices Defendants’
right

to

prompt

disposition

of

this

case,

Plaintiff

ignored

multiple orders, and no other sanction appears adequate.
As to the last of those considerations, the Court explicitly
cautioned

Plaintiff

that

a

dismissal without prejudice.

failure

to

comply

would

lead

to

“In view of th[at] warning, the

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

Any other course

would . . . place[] the credibility of the [C]ourt in doubt and
invite[] abuse.”

Id. at 96.

IT IS THEREFORE RECOMMENDED that the Court dismiss this action
without prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 19, 2016

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