Spann v. NC Department of Public Safety et al

Filing 61

ORDER that Deft Uhrens 48 MOTION to Dismiss for Lack of Prosecution and MOTION to Compel Discovery is HELD IN ABEYANCE for 40 days. Ms. Lang is advised to take immediate remedial action or this action will be dismisse d without prejudice as herein outlined. Suspension imposed in 1:18mc1 is LIFTED for 40 days insofar as necessary to allow Ms. Lang to take prompt remedial action in this matter. Signed by District Judge Max O. Cogburn, Jr. on 1/05/2018. (Copy of this order sent to Judge Conrad as instructed.)(Pro se litigant served by US Mail.)(ejb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:17-cv-00104-MOC-DLH
RONALD WAYNE SPANN,

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Plaintiff,
Vs.
NORTH CAROLINA DEPARTMENT OF
PUBLIC SAFETY, et al.,
Defendants.

ORDER

THIS MATTER is before the court on defendant Robert Uhren’s Motion to Dismiss for
Lack of Prosecution and Motion to Compel Discovery (#48). Plaintiff, while a prisoner
incarcerated by the State of North Carolina, is represented by an attorney admitted to practice
before the Bar of this Court, Kristin Harmon Lang. After the time for filing a response to
Defendant Uhren’s motions had lapsed, this Court calendared the motions for oral arguments and
therein directed that Ms. Lang personally appear. Plaintiff’s mother, Ms. Land, was also invited
to attend the hearing as the Court noted she was an interested party based on her correspondence
(#56).
The Clerk of Court noticed the matter for hearing January 4, 2017, at 10:30 a.m. While
Ms. Land and counsel for Dr. Uhren appeared, Ms. Lang failed to appear, seek a continuance of
the hearing, or in any manner contact this Court or opposing counsel.

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FINDINGS AND CONCLUSIONS
I.

Background
In this action, plaintiff contends that defendants have been deliberately indifferent to his

medical needs while housed at a private state correctional facility. The Complaint was filed by
attorney Mary March Exum on behalf of plaintiff on April 13, 2017. On June 7, 2017, Ms. Exum
was suspended for five years from the practice of law by the North Carolina State Bar. See
16DHC18, N.C.S.B. On July 11, 2017, Ms. Lang entered her appearance on behalf of plaintiff,
and on July 29, 2017, this Court sua sponte terminated Ms. Exum as counsel of record as she no
longer possessed a valid North Carolina Bar License, which is necessary for continued practice by
members of the Bar of this Court.
On October 25, 2017, Defendant Uhren filed a Motion to Compel Initial Disclosures (#41).
Counsel for plaintiff did not respond to that motion, which was granted by the magistrate judge,
Order (#46), who later awarded defense counsel’s fees and costs in bringing that motion. Order
(#58). The petition for award of costs and fees was also uncontested by plaintiff’s counsel.
Similarly, the magistrate judge granted another Motion to Compel Plaintiff’s Initial Disclosures
(#44) filed by other individual defendants. Order (#47).
On November 20, 2017, Defendant Uhren filed the instant Motion to Dismiss for Lack of
Prosecution and Motion to Compel Discovery (#48). The day after plaintiff’s Response to those
motions was due to be filed,1 Ms. Lang filed a Motion to Withdraw from representation of plaintiff.
In that motion, Ms. Lang represented that plaintiff’s mother, Ms. Land, possessed a power of

1
Members of the Bar of this Court are served via ECF and do not receive the additional three days for filing.
Fed.R.Civ.P. 6(e).

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attorney for plaintiff and had consented to the proposed withdrawal.2 On December 6, 2017, Ms.
Lang’s Motion to Withdraw was denied by the magistrate judge, who found that counsel had not
complied with the provision of the Local Civil Rules3 requiring that she reflect consultation with
the actual plaintiff,4 and that withdrawing from representation when a Response was due was not,
in any event, appropriate.5 In denying the request, the magistrate judge advised Ms. Lang that
plaintiff’s Response was due December 7, 2017.6
After the instant motion to dismiss and compel ripened on December 7, this Court reviewed
the pending motions in chambers. While it was apparent that Ms. Lang never responded to the
dispositive motions filed by Defendant Uhren, the Court did not summarily grant the motions, but,
in an abundance of caution, set the motions for hearing and advised Ms. Lang that her presence
was required. Order (#57). Review of the docket reveals that the Clerk of Court properly set the
hearing for January 4, 2018, and provided counsel for plaintiff with notice.
II.

The January 4, 2018 Hearing
At the hearing, Ms. Lang failed to appear.

Upon inquiry by the Court as to her

whereabouts, neither opposing counsel for Defendant Uhren nor Ms. Land knew where she was or
had heard from her. The Court noted that counsel for Defendant Uhren travelled from Raleigh to
Asheville to attend the hearing. Ms. Land informed the Court that there had been no

2
Ms. Land informed the Court during the January 4, 2018, hearing that while Ms. Lang had asked for
permission to withdraw, she never agreed to Ms. Lang’s withdrawal.
3
LCvR 83.1(F).
4
Ms. Lang referenced in her Motion to Withdraw that plaintiff’s mother has a power of attorney for plaintiff.
That document has not, however, been provided to this Court and the Court notes that the Complaint was brought in
plaintiff’s name, see Fed.R.Civ.P. 7(a), not by a conservator or like fiduciary under Rule 17(c). In any event,
paragraph 2(g) of Ms. Exum’s Order of Suspension gives this Court some hesitation, pause, and concern in giving
any substantive effect to a POA in this matter.
5
N.C.R.P.C. 1.16(b)-(d).
6
Even though plaintiff’s response was due December 4 under Rule 6(e), Judge Howell generously and quite
properly extended that deadline sua sponte to December 7, 2017.

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communication from Ms. Lang and that she had taken matters up with the North Carolina State
Bar. She also stated that she had never agreed to Ms. Lang’s earlier Motion to Withdraw.
The Court then heard Defendant Uhren on his Motion to Dismiss for Failure to Prosecute.
Citing the continued absence of Ms. Lang, counsel asked that the action be dismissed with
prejudice as plaintiff had failed to prosecute the action. The Court then expressed its concern with
dismissing an action when it was readily apparent that the failure to prosecute was the fault of the
attorney. Counsel for Defendant then suggested that based on case law (discussed infra), the Court
could construct a dismissal without prejudice that would allow the plaintiff an opportunity to
pursue claims in the future, but that such course of action was not the defendant’s first choice.
III.

Motion to Dismiss for Failure to Prosecute
In considering whether dismissal is appropriate for failure to prosecute, the Court has

considered Rule 41(b), Federal Rule of Civil Procedure. Such rule provides for involuntarily
dismissal of an action for “failure to prosecute or to comply with these rules or a court order….”
The Court of Appeals for the Fourth Circuit has repeatedly noted that such involuntary dismissal
with prejudice is a “harsh” result and must be employed with caution.
We have noted that involuntary dismissal under Rule 41(b) “is such a harsh sanction
... [that] it should be resorted to only in extreme cases.” McCargo v. Hedrick, 545
F.2d 393, 396 (4th Cir.1976) (quotation marks omitted). We thus require a district
court to consider four factors when deciding whether to involuntarily dismiss an
action for attorney misconduct. Id. First, the court must consider the “degree of
personal responsibility on the part of the plaintiff.” Id. Second, it must determine
the “amount of prejudice to the defendant.” Id. Third, it must look to the record to
see if it indicates “a drawn out history of deliberately proceeding in a dilatory
fashion.” Id. Finally, the court must consider whether “sanctions less drastic than
dismissal” will be effective. Id.

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Richardson v. Boddie-Noell Enterprises, Inc., 2003 WL 22429534, at 4 (4th Cir. Oct. 27, 2003).7
Further, the appellate court has instructed that the “test for dismissal pursuant to Rule 41(b) is
similar to that for Rule 37,” and that “before a dismissal a court must give a plaintiff a “clear and
explicit” warning of the consequences of failing to satisfy the court’s conditions and orders,” and
that “dismissal as a sanction is an extreme remedy to be used only when a party has displayed
callous disregard to its obligations or exhibited very bad faith.” Berry v. South Carolina Dept. of
Social Services, 1997 WL 499950, at 6 (4th Cir. 1997). The Court considers the Rule 37(e) sanction
of dismissal with prejudice as one of last resort. The Court further notes that the 2015 revisions to
Rule 37(e) emphasizes that any sanction should be proportionate to the alleged misconduct.
First, the Court determines that adequate notice has been provided to plaintiff inasmuch as
Defendant Uhren filed a motion making clear that dismissal was being sought for failure to
prosecute. In its earlier Order this Court pointed out the possibility of dismissal and calendared
the Motion to Dismiss for hearing to afford plaintiff and Ms. Lang an additional opportunity to
respond. Thus, it appears that the notice requirement has been satisfied.
Next, the Court has considered whether dismissal is an appropriate resolution. In making
that determination the Court has considered the four Boddie-Noell factors.
First, the Court has considered the “degree of personal responsibility on the part of the
plaintiff.” Id. There simply is no showing that plaintiff has any culpability in the matter, other
than in hiring attorneys who were unable to do the work required to pursue a federal case. Under
the first factor, plaintiff is without fault.

Due to the limits of CM/ECF, copies of unpublished opinions are incorporated
herein by reference to the Westlaw citation.
7

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Second, the Court must determine the “amount of prejudice to the defendant.” Id. Here,
Defendant Uhren has shown that it has been unable to receive from counsel for plaintiff very basic
discovery: responses to requests for production of documents and answers to interrogatories. In
his motion, defendant details the efforts he took in attempting to work with Ms. Lang before
moving to compel production. Clearly, where a defendant -- called upon to defend a civil rights
action -- cannot get discovery or even a response to courtesy calls or emails, that party is severely
prejudiced not just in the defense of the claim, but in footing the costs of litigation which counsel
for plaintiff has apparently abandoned.
Third, the Court must look to the record to see if it indicates “a drawn out history of
deliberately proceeding in a dilatory fashion.” Id. As mentioned above, counsel for plaintiff has
created for the Court and the parties a morass and Ms. Lang’s lack of diligence has resulted in
other defendants herein having to move to compel discovery and seek their costs and fees. Clearly,
Judge Howell’s orders compelling discovery and sanctioning Ms. Lang – coming well before the
hearing on these motions – had so little impact on Ms. Lang that she failed to appear at a hearing
at which her presence was required by a court Order. Thus, the Court concludes that counsel for
plaintiff has “deliberately proceeded in a dilatory fashion,” which is at this point a generous
characterization.
Fourth and finally, the Court must consider whether “sanctions less drastic than dismissal”
will be effective. Most of the tools available for a Court to compel compliance by a party or the
party’s attorney are forged on a premise that the party or the attorney wants the case to proceed to
a merits determination. Here, it is clear that plaintiff’s attorney has abandoned the plaintiff, making
the panoply of lesser sanctions unavailing.

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Having considered the four Boddie-Noell factors, it appears that dismissal is the only
effective sanction available. However, without tempering, outright dismissal would simply be too
harsh a remedy as plaintiff appears blameless and the Court believes that a dismissal without
prejudice is the fairest approach.
The Court has found guidance in the well-reasoned decision of a colleague in Hopkins v.
J.C. Penney Co., Inc., 227 F.R.D. 347 (D. Kan. Nov. 19, 2004), which fashioned a dismissal
without prejudice where the client was blameless. Unlike this case, counsel for plaintiff in Hopkins
took personal responsibility for the failures in that case. While the Hopkins court placed five
conditions on refiling, this Court will only adopt one of the five inasmuch as the other conditions
would be too onerous on an incarcerated person who has no source of income. Further, due to the
lack of participation by plaintiff’s counsel, the Court is not confident that plaintiff’s counsel ever
communicated defendant’s discovery requests to him.
Tempering the sanction further, the Court will give Ms. Lang one last bite at the apple by
staying the dismissal for 40 days in hopes that whatever has gone wrong in her practice was
transient and can be worked out. Specifically, Ms. Lang is granted leave to show cause within 40
days in this action why the action should not be dismissed as discussed herein. The suspension
from practice (discussed in the following paragraph) will be lifted for that purpose.
IV.

Sanctions against Attorney Lang
The Court must now turn to the most unpleasant task of what to do about Ms. Lang. She

is a member of the Bar of this Court and, as such, has agreed to follow the Rules of Professional
Conduct, the Rules of this Court, and obey lawful Court orders. By her actions and, more
particularly, her inactions, Ms. Lang has placed in jeopardy the legal interests of her client, Mr.

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Spann. While the Court believes that it has done all that it can to salvage those interests, the record
before the Court gives it reason to believe that Ms. Lang has abandoned the client, failed to respond
to dispositive motions, failed to participate in mandatory disclosure and discovery procedures, and
failed to attend a hearing that she was specifically directed to attend.
Based on the record before it, this Court finds probable cause to believe that Ms. Lang has
violated the North Carolina Rules of Professional Conduct, including but not limited to Rules 1.1
(Competence), 1.3 (Diligence), 3.2 (Expediting Litigation), 3.3 (Candor with the Tribunal), and
3.4 (Fairness to the Opposing Party). To protect other members of the public, an Order is being
entered in 1:18mc1 immediately suspending Ms. Lang from the practice of law before the United
States Court for the Western District of North Carolina. The procedures for contesting that Order
are outlined in LCvR 83.2(a) (W.D.N.C. Jan. 1, 2018). See In re Kristin Harmon Lang, 1:18mc1.8
Finally, Ms. Lang is advised that that neither the potential dismissal of this case nor her
suspension from the Bar of this Court ends her obligation to pay the costs and fees of Dr. Uhren
as Ordered by Judge Howell.

ORDER
IT IS, THEREFORE, ORDERED that Defendant Uhren’s Motion to Dismiss for lack of
Prosecution and Motion to Compel Discovery (#48) is HELD IN ABEYANCE for 40 days. Ms.
Lang is advised to take immediate remedial action or this action will be dismissed without

8
As it appears that Ms. Lang is also presently counsel of record for a party in Source.Auction, LLC v.
Farkas, 3:17cv185, the Clerk of Court will be instructed to deliver a copy of this Order to the Honorable Robert J.
Conrad, Jr., United States District Judge, who is presiding over that ongoing case. Ms. Lang is advised that Judge
Conrad retains the inherent authority and discretion to either apply this suspension to that appearance or grant an
exception.

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prejudice as herein outlined. The suspension imposed in 1:18mc1 is LIFTED for 40 days insofar
as necessary to allow Ms. Lang to take prompt remedial action in this matter.

The Clerk of Court is instructed to send a copy of this Order to Judge Conrad for his
consideration as noted above in Footnote 8.

Signed: January 5, 2018

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