Hardy v. Astrue

Filing 18

ORDER AND MEMORANDUM AND RECOMMENDATION: ORDER striking 16 MOTION for Summary Judgment - Social Security, 17 Memorandum in Support of Motion, 14 MOTION to receive new and material evidence, and 15 Memorandum in Supp ort of Motion, filed by Carla Hutchinson Hardy. MEMORANDUM AND RECOMMENDATIONS the Court RECOMMENDS the District Court DISMISS without prejudice this action. ( Objections to M&R due by 5/7/2012) Signed by Magistrate Judge Dennis Howell on 4/20/12. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:11cv299
CARLA HUTCHINSON HARDY,

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Plaintiff,
v.

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
_______________________________

ORDER AND
MEMORANDUM AND
RECOMMENDATION

Pending before the Court is Plaintiff’s Motions for Summary Judgment
[# 16] and Motion to Receive New and Material Evidence [# 14]. The Court
STRIKES the Motion for Summary Judgement [# 16], Memorandum in Support
of Motion for Summary Judgment [# 17], Motion to Receive New and Material
Evidence [# 14], Memorandum in Support of Motion to Receive New and Material
Evidence [# 15]. In addition, the Court RECOMMENDS that the District Court
DISMISS without prejudice this action.
I.

Analysis

A.

Plaintiff Failed to Comply with an Order of the Court

Recently, this Court warned counsel for Plaintiff in a Memorandum and
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Recommendation entered in Pyles v. Astrue, as follows:
The Court notes that counsel for Plaintiff has numerous social security
appeals pending before the Court. In many of these cases, counsel has
filed similar briefs that lack citations to legal authority and fail to clearly
articulate the alleged errors committed by the ALJ. The Court warns
counsel that going forward, the Court will consider striking any brief
submitted by counsel in a social security case that does not separately set
forth each alleged error and contain legal authority supporting each of
the claimant's alleged errors.
Pyles v. Astrue, No. 1:11cv116, slip. op. at 6-7 n.2 (W.D.N.C. Mar. 19, 2012)
(Howell, Mag. J.). Plaintiff is represented by the same counsel in this case, V.
Lamar Gudger, III, Esq. Like in Pyles, Plaintiff filed a Memorandum in Support
of his Motion for Summary Judgment that failed to cite legal authority supporting
each of his alleged errors. Accordingly, the Court struck Plaintiff’s Motion for
Summary Judgment [# 11] and Memorandum in Support of Motion for Summary
Judgment [# 12]. (Order Striking Mot. Summ. J., Mar. 22, 2012.) In addition, the
Court Struck Plaintiff’s Motion to Remand and to Receive New Evidence for
failure to comply with Local Rule 7.1(C). (Id.) The Court granted Plaintiff twenty
(20) days to submit a new motion and supporting brief.
On April 11, 2012, Plaintiff submitted new motions and briefs. Consistent
with the practice of counsel for Plaintiff, Plaintiff’s brief in support of her Motion
to Receive New and Material Evidence failed to cite any legal authority in support
of her position that the Court must remand this case because of new and material
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evidence. Accordingly, the Court STRIKES the motion [# 14] and supporting
brief [# 15]. The Court will not allow Plaintiff a third opportunity to file a motion
that complies with this Court’s Orders and the Local Rules.
Plaintiff also filed a second Motion for Summary Judgment [# 16] and brief
in support of this motion [# 17]. Plaintiff’s brief, however, is virtually identical to
the prior brief that the Court struck. The only recognizable changes are that
Plaintiff: (1) altered the first sentence to recognize that the motion was filed in
response to the Court’s March 22, 2012, Order; and (2) added the “citation” “See,
20 C.F.R. § 404.1527(d), which describes the weight that should be given to the
opinions of treating physicians, such as Dr. Englebrecht and Dr. Kahn.” (Pl.’s
Mem. Supp. Mot. Summ. J. at p. 10.) The entire legal analysis still fails to cite the
Court to a single case from any jurisdiction supporting Plaintiff’s legal argument.
By resubmitting essentially the same brief to the Court, Plaintiff has, once again,
simply thrown words on the page without any supporting authority with the hope
that this Court will do the job of Plaintiff’s counsel and determine whether any law
supporting Plaintiff’s argument exists. As the Court warned Plaintiff in its prior
Orders, this type of conduct from counsel will not be tolerated in this Court. By
resubmitting essentially the same legal brief to this Court, Plaintiff has flagrantly
and intentionally disregarded an Order of this Court. Accordingly, the Court

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STRIKES the Motion for Summary Judgement [# 16] and Memorandum in
Support of Motion for Summary Judgment [# 17] for failing to comply with a
lawful Order of this Court.
B.

The District Court Should Dismiss this Action without Prejudice

It is now well settled that a district court has the inherent power to sanction
conduct that constitutes an abuse of the judicial process. Hensley v. Alcon Labs.,
Inc., 277 F.3d 535, 542 (4th Cir. 2002); Silvestri v. Gen. Motors Corp., 271 F.3d
583, 590 (4th Cir. 2001); United States v. Shaffer Equip. Co., 11 F.3d 450, 461-62
(4th Cir. 1993). “The policy underlying this inherent power of the courts is the
need to preserve the integrity of the judicial process in order to retain confidence
that the process works to uncover the truth.” Silvestri, 271 F.3d at 590. The most
powerful sanction in the district court’s quiver is its inherent power to dismiss a
case with prejudice. Shaffer, 11 F.3d at 462; Hensley, 277 F.3d at 542. “Since
orders dismissing actions are the most severe, such orders must be entered with the
greatest caution.” Shaffer, 11 F.3d at 462.
As previously, discussed, Plaintiff has abused the judicial process by failing
to comply in good faith with an Order of this Court. By resubmitting a virtually
identical pleading in response to this Court’s Order directing Plaintiff to file a new
brief, Plaintiff has intentionally and flagrantly abused the judicial process and

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flaunted the power of this Court. Moreover, by flooding this Court with motions bordering on the frivolous - containing few, if any, legal citations supporting the
claims for relief, counsel for Plaintiff is wasting judicial resources, clogging the
docket of this Court, preventing the Court from addressing the numerous
substantive and pertinent motions on its dockets, and hindering the “just, speedy,
and inexpensive determination of every action and proceeding” as contemplated by
the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 1.
The Court has provided counsel for Plaintiff multiple opportunities and
warnings to comply with the Court’s Orders, but counsel has flaunted the power of
this Court by adding a single sentence to its prior brief in response to these Orders
and warnings. Upon a review of the record, the Court finds that a dismissal
without prejudice of this action is appropriate. In addition, the Court
RECOMMENDS that Plaintiff not be allowed to re-file this action until either
Plaintiff or counsel for Plaintiff pays the Commissioner his reasonable expenses,
including attorney fees incurred in defending this action. Simply allowing Plaintiff
to re-file this action is not a significant enough sanction because it does not
adequately punish the conduct of Plaintiff’s counsel for the intentional and
deliberate abuse of the judicial process, does not deter Plaintiff’s counsel from
continuing to file similar pleadings in the future, and does not protect the public

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interest in ensuring that the Court’s dockets are not clogged with frivolous
pleadings by a single attorney.1 See Shaffer, 11 F.3d at 463. Accordingly, if the
District Court follows the recommendation of this Court and dismisses this case,
the District Court should direct the Commissioner to submit a request for fees with
supporting affidavits so that the Court can determine what about Plaintiff must pay
if she seeks to re-file this action.
Finally, the Court INSTRUCTS counsel for Plaintiff that if he continues to
fail to comply with this Court’s Orders in Social Security cases, the Court will
consider further sanctions, which may include dismissing future actions with
prejudice or even prohibiting his practice before this Court in Social Security cases
until he completes a specific number of continuing legal education hours with the
state bar.
II.

Conclusion

The Court STRIKES the Motion for Summary Judgement [# 16],

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A district court may only dismiss an action with prejudice upon a finding
of bad faith or similar abuse of the judicial process. Hensley, 277 F.3d at 542. To
aid district courts in wielding their inherent power, the Fourth Circuit has set forth
six factors that courts must consider prior to dismissing a case with prejudice. Id.
Although the Court finds that counsel has abused the judicial process at a level that
is “inconsistent with the orderly administration of justice or undermines the
integrity of the process,” the Court also finds that the lesser sanction of dismissal
without prejudice plus the payment of fees prior to refiling is a more appropriate
sanction after considering the six factors. Shaffer, 11 F.3d at 462.
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Memorandum in Support of Motion for Summary Judgment [# 17], Motion to
Receive New and Material Evidence [# 14], and Memorandum in Support of
Motion to Receive New and Material Evidence [# 15]. In addition, the Court
RECOMMENDS that the District Court DISMISS without prejudice this action.

Signed: April 20, 2012

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Time for Objections
The parties are hereby advised that, pursuant to 28, United States Code,
Section 636(b)(1)(c), and Rule 72, Federal Rules of Civil Procedure, written
objections to the findings of fact, conclusions of law, and recommendation
contained herein must be filed within fourteen (14) days of service of same.
Responses to the objections must be filed within fourteen (14) days of service
of the objections. Failure to file objections to this Memorandum and
Recommendation with the district court will preclude the parties from raising such
objections on appeal. Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S.
1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied,
467 U.S. 1208 (1984).

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