Commercial Credit Group, Inc. v. Anchor Environmental AAA Services, Inc. et al

Filing 55

ORDER granting in part and denying in part 54 Motion to Dismiss for Lack of Prosecution. Defendant Anchor's counterclaims are Dismissed without prejudice. Signed by Chief Judge Frank D. Whitney on 12/28/16. (ssh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:15-cv-00589-FDW-DCK
COMMERCIAL CREDIT GROUP, INC.,
Plaintiff,
vs.
ANCHOR ENVIRONMENTAL AAA
SERVICES
a/k/a
ANCHOR
ENVIRONMENTAL AAA SERVICES,
INC.,
JIMMY
SKOVGARD,
and
BEVERLY SUE SKOVGARD,
Defendants.

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ORDER

THIS MATTER is before the Court on the motion filed on December 5, 2016 by
Commercial Credit Group Inc. (hereinafter, “CCG) seeking to compel litigation of the Defendants’
pending counterclaims against CCG or, alternatively, dismissal thereof with prejudice (Doc. No.
54). None of the Defendants responded to the motion, and the time for doing so has expired. In
addition to service of the instant motion, on December 22, 2016, counsel for CCG also sent an
email addressed to the Court and defense counsel submitting a proposed order to chambers.
Defense counsel never responded to that email or otherwise indicated to the Court that Defendants
objected to or intended to respond to CCG’s motion.
Defendant Anchor Environmental AAA Services a/k/a Anchor Environmental AAA
Services, Inc. (hereinafter, “Anchor”) filed Chapter 7 on November 2, 2016, and Randy Royal was
appointed as Anchor’s Chapter 7 trustee (hereinafter, the “Trustee”).

Plaintiff CCG has

represented to the Court that the Trustee, as well as Anchor’s pre-Chapter 7 counsel of record,
were each properly served with CCG’s motion, but neither have filed responses thereto. As to the
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impact of Anchor’s bankruptcy filing, the Court finds that while Anchor’s pending bankruptcy
might have a preclusive effect on CCG’s pending claims against Anchor, the Court sees no reason
to stay Anchor’s claims against CCG. In fact, Anchor has provided no authority to this Court to
support a stay on its claims against others. Instead, Anchor has simply remained silent and
nonresponsive to CCG’s motions and correspondence concerning Anchor’s prosecution of its
counterclaims. In its motion, CCG argues that Anchor has engaged in tactics resulting in delay of
prosecution of its counterclaims and seeks the Court to provide Anchor with the alternative of
either litigating its counterclaims forthwith or have them dismissed. The Court declines to present
Anchor with alternative options because, in essence, Plaintiff CCG’s instant motion accomplished
that same notice, yet Anchor has willfully declined to not respond to indicate its choice of litigation
or dismissal.
Rule 41(b) of the Federal Rules of Civil Procedure provides, “If the [party with the burden
of proof] fails to prosecute or to comply with these rules or a court order, a defendant may move
to dismiss the action . . . .” 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.
In light of Defendants’ failure to respond to CCG’s motion or otherwise indicate any
intention to further prosecute Anchor’s counterclaims, Anchor’s counterclaims are DISMISSED
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for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Such
dismissal is WITHOUT PREJUDICE should Anchor choose to refile its counterclaims or
otherwise litigate them in any pending or future bankruptcy case.
IT IS THEREFORE ORDERED that Plaintiff CCG’s Motion to Dismiss or, alternatively,
To Compel Prosecution (Doc. No. 54) is GRANTED IN PART AND DENIED IN PART as
explained herein.

Defendant Anchor’s counterclaims are hereby DISMISSED WITHOUT

PREJUDICE to be timely refiled or reasserted in accordance with applicable governing law.
IT IS SO ORDERED.
Signed: December 28, 2016

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