Thorton v. The Art Institute of Charlotte

Filing 9

ORDER DISMISSING CASE with Prejudice. Signed by Chief Judge Frank D. Whitney on 7/2/2015. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00621-FDW-DCK

MARCUS D. THORTON,
Plaintiff,
vs.
THE ART INSTITUTE OF CHARLOTTE,
Defendant.

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ORDER

THIS MATTER is before the Court sua sponte. For the reasons set forth below, this matter
is dismissed with prejudice.
PROCEDURAL HISTORY
Plaintiff removed this case to this Court on November 7, 2014. (Doc. No. 1). Thereafter,
on December 3, 2014, the Court granted Defendant’s Motion to Stay Judicial Proceedings and
Defer to Arbitration based on an arbitration agreement entered into by the parties. (Doc. No. 5).
In its Order staying the proceedings pending arbitration, the Court ordered the parties to proceed
to arbitration and submit reports to the Court every ninety (90) days. Id. Additionally, the Court
informed the parties that this matter must be resolved within six (6) months of the date of that
Order, i.e., June 2, 2015. Id.
On March 4, 2015, Defendant filed its first status report, without Plaintiff’s input or
assistance. (Doc. No. 6). The report detailed numerous attempts made by Defendant to contact
Plaintiff and to proceed to arbitration, all to no avail. Id. Because Plaintiff failed to submit a status
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report, as required by the Court’s December 3, 2014 Order, the Court issued an order sua sponte
requiring Plaintiff to show cause by April 21, 2015 why he had not submitted his first report on
the progress of arbitration in this case. (Doc. No. 7). On June 24, 2015, more than two months
after Plaintiff’s deadline to show cause, Plaintiff had not responded to the Order to show cause,
and had otherwise failed to make any filings or contact with the Court concerning the status of this
case. Therefore, at that time, the Court issued a second order to Plaintiff requiring him to show
cause why his Complaint against Defendant should not be dismissed for failure to prosecute. (Doc.
No. 8). This Order cautioned Plaintiff that his failure to timely respond could result in dismissal
of his Complaint for failure to prosecute. Id.
As of the date of this Order, the deadline for the parties to resolve this matter has passed,
and Plaintiff has failed to respond to both of the Court’s orders to show cause.
ANALYSIS
Rule 41(b) of the Federal Rules of Civil Procedure (“FRCP”) provides, “[i]f the plaintiff
fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss
the action or any claim against it.” 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)). Apparently abandoning his case, not
only has Plaintiff failed to comply with the Court’s Order compelling arbitration, but he has also
failed to respond to the Court’s two orders to show cause.

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Recognizing that dismissal under Rule 41(b) is a harsh sanction and not to be invoked
lightly, McGargo v. Hedrick, 545 F.2d 393, 396 (4th Cir. 1976), the Court finds that such dismissal
is warranted in the present case. Consistent with well-established Fourth Circuit precedent, the
Court has considered the following factors in its decision: (i) the degree of personal responsibility
of the plaintiff; (ii) the amount of prejudice caused the defendant; (iii) the existence of a history of
deliberately proceeding in a dilatory fashion; and (iv) the existence of a sanction less drastic than
dismissal. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989).
First, while recognizing that Plaintiff is proceeding pro se, the Court finds that the degree
of Plaintiff’s personal responsibility remains great. The Court has gone to great lengths to instruct
Plaintiff about his responsibilities in proceeding in this case, and Plaintiff has nonetheless failed
to carry out these responsibilities and to prosecute the case. Second, Defendant has an interest in
having this matter resolved expeditiously. It has, therefore, been prejudiced by Plaintiff’s failure
to proceed with arbitration and failure to prosecute his case. And, with respect to the third factor,
the record clearly reflects Plaintiff’s repeated delays in carrying out his responsibilities in this case.
Plaintiff has exhibited a pattern of failing to abide by the Court’s deadlines and failing to make
appropriate filings. Not only has Plaintiff engaged in dilatory conduct, but Plaintiff has failed to
prosecute his case. Finally, given Plaintiff’s lack of compliance with numerous orders issued by
the Court, any lesser sanctions would likely be ineffective.
The Fourth Circuit has held that a district court does not abuse its discretion by dismissing
an action after issuing an explicit and reasonable warning.

Ballard, 882 F.2d at 95-96.

Consequently, noting the Court’s warning to Plaintiff concerning the implications of his failure to
appropriately respond to the Court’s orders, the Court finds that dismissal is an appropriate
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sanction for Plaintiff’s failure to prosecute and non-compliance with the Court’s orders. In sum,
after considering the above factors, and it appearing that no other sanction is feasible or sufficient,
the Court finds that dismissal of Plaintiff’s Complaint is warranted pursuant to FRCP 41(b).
CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s case is DISMISSED WITH PREJUDICE,
and the Clerk of Court is respectfully directed to CLOSE THE CASE.
IT IS SO ORDERED.
Signed: July 2, 2015

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