Gainey v. Alliance One

Filing 17

ORDER on or before 5 business days from entry of this Order, Deft shall advise the Court in writing of the status of this action. (SEE ORDER FOR DETAILS) Signed by District Judge Martin Reidinger on 9/18/12. (Pro se litigant served by US Mail.) (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv279
STEPHEN GAINEY,

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Plaintiff,
vs.
ALLIANCE ONE,
Defendant.

ORDER

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THIS MATTER is before the Court sua sponte.
In this action, filed October 20, 2011, the Plaintiff sought relief pursuant
to the Fair Debt Collection Act, 15 U.S.C. §§1692, et. seq. [Doc. 1]. At the
time the action was brought, the Plaintiff was represented by counsel. The
Defendant answered, denying any culpability, and a Pre-Trial Order and Case
Management Plan was entered on March 21, 2012. [Doc. 5, Doc. 8].
On May 24, 2012, the Plaintiff’s attorney, Christopher Lane, moved for
leave to withdraw. [Doc. 10]. As grounds, the attorney stated that the “Plaintiff
has been unresponsive to the undersigned’s repeated requests for assistance
prosecuting the instant case.” [Id. at 1]. Counsel noted that without assistance
from the Plaintiff, he was unable to pursue the Plaintiff’s claims. [Id.]. The
motion was granted by Magistrate Judge Dennis L. Howell. [Doc. 11]. In his
Order, Magistrate Judge Howell instructed the Plaintiff to advise the Court in

writing within twenty days whether he intended to prosecute the case pro se
or intended to retain new counsel. [Id.]. The Plaintiff never filed response to
the Order.
On July 12, 2012, the Defendant moved to compel the Plaintiff to
respond to its discovery requests, noting that the Plaintiff had been both nonresponsive and non-compliant. [Doc. 12]. Defense counsel noted in that
motion that it could not defend the allegations of the Complaint without
discovery. [Id.]. Counsel also pointed out that the Plaintiff had failed to
respond to the Magistrate Judge’s Order requiring him to advise whether he
intended to proceed pro se. [Id.].
On August 9, 2012, Magistrate Judge Dennis L. Howell granted the
Defendant’s Motion to Compel and ordered the Plaintiff to produce all
documents responsive to the Defendant’s Request for Production of
Documents within twenty days of entry of his Order. [Doc. 14]. The Plaintiff
was advised by the Magistrate Judge that his failure to comply with the Order
could result in a recommendation that this action be dismissed for failure to
prosecute. [Id. at 3]. The Magistrate Judge declined to make an award of
costs against the Plaintiff. [Id.].
On August 30, 2012, the Defendant notified the Court that the Plaintiff
failed to comply with the Magistrate Judge’s Order. [Doc. 15]. The Defendant

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still had not received any responses to its discovery requests and, thus, the
Plaintiff had continued his refusal to engage in discovery. The Defendant
asked that this Court grant the relief sought in the Motion to Compel. [Id. at 2].
The Magistrate Judge, however, has previously ruled on that motion and this
Court will not re-visit that ruling at this time. The Defendant also asked that
the action be dismissed for failure to comply with the Magistrate Judge’s
Order. [Id.].
On August 31, 2012, the Magistrate Judge addressed the Defendant’s
Notice of Failure to Comply with Order Compelling Discovery and, again,
instructed the Plaintiff as to his duty to respond to discovery. [Doc. 16]. He
also warned the Plaintiff that failure to comply with previous Court orders
could result in the dismissal of this action. [Id.]. The Court will therefore
request the Defendant to advise whether the Plaintiff has complied or
otherwise acted in response to that Order.
IT IS, THEREFORE, ORDERED that on or before five (5) business days
from entry of this Order, the Defendant shall advise the Court in writing of the
status of this action.

Signed: September 18, 2012

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