Prater v. Colvin

Filing 3

ORDER DISMISSING CASE without prejudice for the reasons stated herein. The Clerk is respectfully DIRECTED to CLOSE THE CASE. Signed by Chief Judge Frank D. Whitney on 10/12/16. (ejb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:16-cv-00079-FDW
MICHAEL L. PRATER,
Plaintiff,
vs.
CAROLYN
W.
COLVIN,
Commissioner of Social Security,
Defendant.

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ORDER

THIS MATTER is before the Court sua sponte concerning the status of this case. Plaintiff,
through counsel, filed this case on March 28, 2016. Plaintiff, however, never provided proof of
service nor has Plaintiff requested an extension of time for doing so. Defendant has not responded
to the Complaint.
Rule 4(m) of the Federal Rules of Civil Procedure provides, “If a defendant is not served
within 90 days after the complaint is filed, the court—on motion or on its own motion after notice
to the plaintiff—must dismiss the action without prejudice . . . .” In this case, the deadline for
service expired months ago.
Rule 41(b) of the Federal Rules of Civil Procedure provides, “If the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to dismiss the
action . . . .” Since no defendant has been served, no defendant is available to make such a motion.
Moreover, “a district court possesses the ‘inherent power’ to dismiss a case sua sponte for failure
to prosecute. . . . [S]uch authority derives from ‘the control necessarily vested in courts to manage
their own affairs so as to achieve the orderly and expeditious disposition of cases.” Eriline Co.,
S.A. v. Johnson, 440 F.3d 648, 654 (4th Cir. 2006) (quoting Link v. Wabash R.R. Co., 370 U.S.

626, 630-31 (1962)). “[A]side from the interests of the individual parties in a lawsuit, a district
court has an important interest in keeping its docket from becoming clogged with dormant cases .
. . .” Erline Co., 440 F.3d at 654.
For these reasons, the Complaint is DISMISSED for failure to comply with Federal Rules
of Civil Procedure 4(m) and failure to prosecute pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure.
IT IS THEREFORE ORDERED that Plaintiff’s case is DISMISSED without prejudice for
the reasons stated herein. The Clerk is respectfully DIRECTED to CLOSE THE CASE.

Signed: October 12, 2016