Wilson-Dye et al v. Chinn-Gary et al

Filing 16

MEMORANDUM AND RECOMMENDATION AND ORDER on 13 MOTION to Dismiss for Lack of Jurisdiction and 12(b)(6) failure to state a claim filed by Trustee Services of Carolina LLC, Jeremy B. Wilkins, 14 MOTION to Dismi ss for Failure to State a Claim filed by Brian Moynihan ( Objections to M&R due by 12/12/2017 plus an additional 3 days if served by mail). IT IS ORDERED that all further proceedings in this action, including all discovery, are STAYED pending the District Judges ruling on this Memorandum and Recommendation. Signed by Magistrate Judge David S. Cayer on 11/28/17. (Pro se litigant served by US Mail.)(tob)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:17-CV-00469-RJC-DSC
SHARON VICTORIA WILSON-DYE, et.
al.,
Plaintiffs,
v.
ELISA CHINN-GARY, et. al.,

Defendants.

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MEMORANDUM AND RECOMMENDATION AND ORDER
THIS MATTER is before the Court on “Defendants Jeremy Wilson, Brock & Scott,
PLLC, and Trustee Services of Carolina, LLC’s Motion to Dismiss Plaintiffs’ Complaint”
(document #13), “Defendant Brian Moynihan’s Motion to Dismiss Plaintiffs’ Complaint”
(document #14), and the Court’s “Order” entered October 19, 2017 (document #15) (directing
Plaintiffs to show cause why this matter should not be dismissed and setting a deadline of
November 20, 2017 for them to respond). Plaintiffs have not responded to the Court’s Order or
the Motions to Dismiss, nor have they requested an extension of time to respond.
This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1) and these Motions are now ripe for the Court’s consideration.
In its October 19, 2017 Order, the Court ordered:
[P]rior to recommending to the Honorable Robert J. Conrad, Jr., the District
Judge to whom this case is assigned, that this case be dismissed for failure to
prosecute, the Court will allow Plaintiffs an opportunity to show cause why this
matter should not be dismissed.

IT IS THEREFORE ORDERED THAT:
1. On or before November 20, 2017, Plaintiffs shall SHOW CAUSE why
the Complaint should not be DISMISSED for failure to prosecute this action.
Plaintiffs are warned that failure to make a timely response to this Order to Show
Cause may result in DISMISSAL of this case WITH PREJUDICE.
Document #15 (emphasis in original).

The docket reflects that the Clerk mailed a copy of the

Order to each Plaintiff.
The 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). Since dismissal is a severe sanction, the 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).
Plaintiffs have failed to respond to the Motions to Dismiss as well as the Court’s Order.
Accordingly, the Court concludes that any sanctions short of dismissal would not 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.

RECOMMENDATION

FOR THE FOREGOING REASONS, as well as those stated in Defendants’ briefs, the
undersigned respectfully recommends that “Defendants Jeremy Wilson, Brock & Scott, PLLC,
and Trustee Services of Carolina, LLC’s Motion to Dismiss Plaintiffs’ Complaint” (document #13)
and “Defendant Brian Moynihan’s Motion to Dismiss Plaintiffs’ Complaint” (document #14) be
GRANTED and that the Complaint be DISMISSED WITH PREJUDICE.
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 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 pro se Plaintiffs at 201 North McDowell Street, #35572, Charlotte, North Carolina 28235,
to defense counsel, and to the Honorable Robert J. Conrad, Jr.
SO RECOMMENDED AND ORDERED.
Signed: November 28, 2017