Lee et al v. Hilldrup Companies, Inc. et al

Filing 13

ORDER STAYING CASE, MEMORANDUM AND RECOMMENDATIONS on 8 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Planes Moving & Storage, Inc. ( Objections to M&R due by 4/25/2013). Signed by Magistrate Judge David S. Cayer on 4/8/2013. (blf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO: 3:13-CV-64-RJC-DSC
STEVEN M. LEE and YVETTE R. LEE, )
)
Plaintiffs,
)
)
v.
)
)
HILLDRUP COMPANIES, INC. and
)
PLANES MOVING & STORAGE, INC., )
)
Defendants.
)

MEMORANDUM AND RECOMMENDATION
AND ORDER
THIS MATTER is before the Court following Plaintiffs’ failure to respond to the
Court’s “Show Cause Order” (document #12) entered March 4, 2013, and Defendant Planes
Moving & Storage, Inc.’s “Motion to Dismiss” (document #8) filed February 8, 2013.
Plaintiffs’ response to the Motion to Dismiss was due on or before February 25, 2013.
When Plaintiffs failed to file a timely response, chambers staff left a telephone message with
Plaintiffs’ counsel on February 28, 2013. Plaintiffs’ counsel did not respond to that message and
has not otherwise communicated with the Court.
On March 4, 2013, in an attempt to give Plaintiffs every reasonable opportunity to
prosecute their claims in this matter, the Court entered an “Order to Show Cause” (document
#12). The Court ordered that:
On or before April 4, 2013, the Plaintiffs shall SHOW CAUSE why the
Complaint should not be DISMISSED for failure to prosecute this action. The
Plaintiffs are warned that failure to make a timely response to this Order to Show
Cause may result in DISMISSAL of this lawsuit WITH PREJUDICE.
1

Document #12 at 2. As stated above, Plaintiffs have not responded to the Court’s Order
in any fashion or even contacted the Court to request additional time in which to respond.
A District Court has the inherent authority to dismiss a case for failure to prosecute, and
Rule 41(b) “provides an explicit basis for this sanction.” Doyle v. Murray, 938 F.2d 33, 34 (4th
Cir. 1991). Because dismissal is a severe sanction, the District Court must exercise this power
with restraint, balancing the need to prevent delays with the sound public policy of deciding
cases on their merits. Dove v. CODESCO, 569 F.2d 807, 810 (4th Cir. 1978). The Fourth Circuit
requires a trial court to consider 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).
Applying those legal principles, the Court concludes that dismissal for failure to
prosecute is the appropriate remedy for Plaintiffs’ repeated failures to respond to the Court’s
Orders and Defendant’s Motion to Dismiss. Given Plaintiffs’ decision to abandon their claims
for all practical purposes, there is no reason to believe that any less severe sanction would be
effective.

ORDER
IT IS ORDERED that all further proceedings in this action, including all discovery, are
STAYED pending the District Judge’s ruling on this Memorandum and Recommendation and
Order.

2

RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
Defendant Planes Moving & Storage, Inc.’s “Motion to Dismiss” (document #8) be GRANTED
and that the Complaint be DISMISSED WITH PREJUDICE as to all Defendants.

NOTICE OF APPEAL RIGHTS
The parties are hereby advised that, pursuant to 28 U.S.C. §636(b)(1)(c), written
objections to the proposed findings of fact and conclusions of law and the recommendation
contained in this Memorandum must be filed within fourteen (14) days after service of same.
Failure to file objections to this Memorandum with the District Court constitutes a waiver of the
right to de novo review by the District Judge. Diamond v. Colonial Life, 416 F.3d 310, 315-16
(4th Cir. 2005); Wells v. Shriners Hosp., 109 F.3d 198, 201 (4th Cir. 1997); Snyder v. Ridenour,
889 F.2d 1363, 1365 (4th Cir. 1989).

Moreover, failure to file timely objections will also

preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140, 147
(1985); Diamond, 416 F.3d at 316; Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003); Wells,
109 F.3d at 201; Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); United States v.
Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk is directed to send copies of this Memorandum and Recommendation and
Order to the parties’ counsel; and to the Honorable Robert J. Conrad, Jr.

SO ORDERED AND RECOMMENDED.

Signed: April 8, 2013

3