CARTER v. CITY OF HIGH POINT

Filing 48

MEMORANDUM OPINION AND ORDER, Signed by JUDGE WILLIAM L. OSTEEN, JR on 08/29/2018, that Plaintiff's motion for extension, (Doc. 46 ), is DENIED. FURTHER that Defendant's motion to dismiss for lack of prosecution, (Doc. 38 ), is GRANTED and that this case is DISMISSED WITH PREJUDICE. A judgment consistent with this Order will be entered contemporaneously herewith.(Taylor, Abby)

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

CRAIG CARTER,
Plaintiff,
v.
CITY OF HIGH POINT,
Defendant.

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1:17CV148

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
In its July 6, 2018 Amended Order, (Doc. 45), this court
granted Defendant’s Motion to Compel [Discovery] and ordered
Plaintiff to respond to Defendant’s First Set of Interrogatories
and First Request for Production of Documents, (Doc. 36-1),
within fourteen (14) days of service of the order. Plaintiff was
warned that “[f]ailure to comply with this order will result in
dismissal of this case with prejudice without further notice.
(Doc. 45 at 9.) Defendant’s Motion to Dismiss for Lack of
Prosecution, (Doc. 38), was taken under advisement until the
time for Plaintiff to comply with the court’s order had expired.
(Doc. 45 at 1.)
Plaintiff failed to comply. On July 30, 2018, after the
time to comply had expired, Plaintiff filed a “Motion for

extension of time to seek furter [sic] representation on this
matter” and requested six months to do so. (Doc. 46.) Plaintiff
did not provide any justification for the request, address his
failure to comply with this court’s Amended Order, or address
any of his previous failures to prosecute as outlined in the
Amended Order. (Doc. 45.)
Defendant responded in opposition to Plaintiff’s motion,
arguing that Plaintiff has not shown excusable neglect as
required under Fed. R. Civ. P. 6(b)(1)(B) for his failure to
comply with this court’s previous order that Plaintiff obtain
substitute counsel or file a notice of intent to proceed pro se.
(Doc. 47.)
“When an act may or must be done within a specified time,
the court may, for good cause, extend the time . . . on motion
made after the time has expired if the party failed to act
because of excusable neglect.” Fed. R. Civ. P. 6(b)(1).
Excusable neglect may be shown taking into circumstances
including “the danger of prejudice to the [opposing party], the
length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the
movant acted in good faith.” Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).
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This court concludes that all factors weigh against a
finding of excusable neglect. Defendant has been prejudiced in
the form of wasted time and attorneys’ fees. Plaintiff failed to
make his request for an extension of time to obtain substitute
counsel until months after this court’s previously-ordered
deadline. Plaintiff has already failed to comply with multiple
orders of this court and has been specifically warned that
failure to comply with this court’s July 6, 2018 Amended Order
would “result in dismissal of this case with prejudice without
further notice.” (Doc. 45 at 9.) Plaintiff offered no reason for
the delay in obtaining substitute counsel or the delay in
complying with this court’s orders, and so there is nothing to
suggest the delay was beyond his control. Finally, this court
concludes that Plaintiff has not acted in good faith. For these
reasons,
IT IS HEREBY ORDERED that Plaintiff’s motion for extension,
(Doc. 46), is DENIED.
IT IS FURTHER ORDERED that Defendant’s motion to dismiss for
lack of prosecution, (Doc. 38), is GRANTED and that this case is
DISMISSED WITH PREJUDICE.
A judgment consistent with this Order will be entered
contemporaneously herewith.

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This the 29th day of August, 2018.

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United States District Judge

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