Harty v. Denny's, Inc.
ORDER to Show Cause within 14 days why the complaint should not be dismissed. Signed by District Judge Frank D. Whitney on 4/16/2012. (tmg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
DOCKET NO. 3:10-CV-350
DENNY’S, INC., JA HARTMAN
PARTNERSHIP, and PARTNERSHIP
THIS MATTER is before the Court sua sponte following Plaintiff’s failure to file any
motions or pleadings in this matter since the Court entered an order denying Defendant Denny’s
motion to dismiss (Doc. No. 28). That order was issued on October 14, 2011, meaning joinder of
the issues occurred ten (10) days thereafter; however, no conference pursuant to Fed. R. Civ. P. 26(f)
has occurred. Because of this substantial delay, the Court ORDERS Plaintiff to SHOW CAUSE
why this matter should not be dismissed for failure to prosecute.
A District Court has the inherent authority to dismiss a case for failure to prosecute, and Fed.
R. Civ. P. 41(b) “provides an explicit basis for this sanction.” Doyle v. Murray, 938 F.2d 33, 34 (4th
Cir. 1991). However, the Court must exercise restraint because dismissal is a severe sanction. The
Court therefore balances the need to prevent delays with the sound public policy of deciding cases
on their merits. See Dove v. CODESCO, 569 F.2d 807, 810 (4th Cir. 1978). The court considers
four factors before dismissing a case for failure to prosecute: "(1) the plaintiff's degree of personal
responsibility; (2) the amount of prejudice caused the defendant; (3) the presence of a drawn out
history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less
drastic than dismissal." Hillig v. Comm'r of Internal Revenue, 916 F.2d 171, 174 (4th Cir. 1990).
Accordingly, the Court will allow Plaintiff an opportunity to SHOW CAUSE why this matter
should not be dismissed before dismissing the case sua sponte. Plaintiff shall SHOW CAUSE why
the complaint should not be dismissed within fourteen (14) days of the issuance of this order.
IT IS SO ORDERED.
Signed: April 16, 2012
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