Rezapour et al v. Earthlog Equity Group, Inc. et al

Filing 24

ORDER granting 22 Motion to Dismiss for Lack of Prosecution. All claims of plfs are dismissed with prejudice as to both defendants, namely, Earthlog Equity Group, Inc., and Robert E. Arms. Signed by District Judge Richard Voorhees on 4/15/2014. (Pro se litigant served by US Mail.)(cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:12CV105-RLV
KAMRON REZAPOUR and TINA
REZAPOUR,

)
)
)
Plaintiffs,
)
)
v.
)
)
EARTHLOG EQUITY GROUP,
)
INC., and ROBERT E. ARMS,
)
)
Defendants.
)
____________________________________)

ORDER

THIS MATTER is before the Court upon Defendants’ “Motion to Dismiss with
Prejudice for Failure to Prosecute,” filed December 20, 2013, and “Certificate of Service,” filed
January 3, 2014. (Docs. 22, 23).
This lawsuit arises out of an agreement between Plaintiffs and Defendants Earthlog
Equity Group, Inc. (“Earthlog”), and Robert E. Arms (“Arms”) for Defendants to construct an
earth shelter home and bomb shelter on real property owned by the Rezapours and located in
Ashe County, North Carolina. The parties’ communications concerning the proposed transaction
/ project / build were largely verbal. However, the parties eventually memorialized the terms of
their agreement in a writing that was never executed. (Pls.’ Am. Compl., Exh. B). Prior to the
breaking of ground on the build, Plaintiffs paid Defendants $201, 910.00 of an agreed upon total
($364, 279.75).1 (Pls.’ Am. Compl., ¶¶ 1011). In or around March 2012, the parties

1

Under the unexecuted contract, Plaintiffs agreed upfront to pay Arms $364, 279.75 for the
project. In addition to the fees Plaintiffs paid Arms for consulting ($5,000), which Plaintiffs do not seek

subsequently disagreed about the propriety of additional costs / fees requested by Defendants to
be paid prior to beginning construction in connection with changes to the building plan and costs
associated with revising blue prints. (Pls.’ Am. Compl., ¶¶ 1213, 1516). According to
Plaintiffs, they orally terminated the agreement shortly thereafter and requested a refund of the
$201, 910. (Pls.’ Am. Compl., ¶ 14). The earth shelter home and bomb shelter were never built
and none of Plaintiffs’ money was refunded by Defendants. (Pls.’ Am. Compl., ¶ 17).
Defendants move for dismissal of Plaintiffs’ claims pursuant to FED. R. CIV. P. 41, which
reads in pertinent part:
(b) Involuntary Dismissal; Effect. If 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. Unless the dismissal order states otherwise, a dismissal under
this subdivision (b) and any dismissal not under this rule--except one for lack of
jurisdiction, improper venue, or failure to join a party under Rule 19--operates as
an adjudication on the merits.
FED. R. CIV. P. 41(b)(2007). “A dismissal with prejudice is a harsh sanction which should not
be invoked lightly in view of the sound public policy of deciding cases on their merits.” Davis v.
Williams, 588 F.2d 69, 70 (4th Cir. 1978) (internal quotation marks and citations omitted).
“Against this policy, the district court must balance considerations of sound judicial
administration, applying four criteria: (1) the degree of personal responsibility on the part of the
plaintiff; (2) the amount of prejudice to the defendant caused by the delay; (3) the presence or
absence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the
effectiveness of sanctions less drastic than dismissal.” Id. (internal quotation marks and citation
omitted).
to recover from Defendants, Plaintiffs paid a $200, 000 down payment and $1, 910.00 for replacement
filters, which they never received.
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As recited in Defendants’ motion, despite several attempts, counsel for Defendants has
been unsuccessful in efforts to discuss matters relevant to the pretrial discovery conference with
Plaintiffs directly and / or with Plaintiffs’ former counsel.2 See FED. R. CIV. P. 26(f); WDNC
LCvR 16.1(A).3 As a result, this litigation has been inactive since issuance of the Court’s July 1,
2013 Memorandum and Order granting in part and denying in part Defendants’ Rule 12(b)(6)
Motion and October 1, 2013 Order setting aside the entry of default and default judgment
previously entered against Defendants in state court. (Docs. 15, 19). The Court’s July and
October 2013 Orders are both hereby incorporated by reference.
According to the record, during November and December 2013, copies of the
Defendants’ motion were sent to Plaintiffs Kamran and Tina Rezapour (at multiple addresses) by
certified mail, return receipt requested. (Doc. 22 / Exh. C). One or more of the Plaintiffs were

2

Plaintiffs are no longer represented by counsel. The record indicates that Attorneys Anthony T.
Lathrop and Christopher D. Tomlinson, both of Moore & Van Allen, PLLC, withdrew on September 11,
2013. (Doc. 18). On October 1, 2013, Attorney Bryan P. Martin of Deal, Moseley & Smith, LLP was
allowed to withdraw as well. (Doc. 21).
3

Under the governing rules, namely, Local Civil Rule 16.1(A) and Rule 26(f) of the Federal
Rules of Civil Procedure:
As soon as is practicable, and in any event not later than fourteen (14) days
from joinder of the issues . . . , the parties or their counsel shall confer as provided by
Fed. R. Civ. P. 26(f), and conduct an “Initial Attorney’s Conference” (“IAC”). In
addition, counsel shall also discuss at such conference consent to magistrate judge
jurisdiction.
LCvR 16.1(A). Joinder of the issues occurred in this case upon decision as to Defendants’ Rule 12(b)(6)
motion. LCvR 16.1(D).
Pursuant to Rule 26(f), the IAC is designed to require the litigants to “consider the nature and
basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or
arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable
information; and develop a proposed discovery plan.” Fed. R. Civ. P. 26(f). Significantly, the federal
rules hold the parties “jointly responsible” (whether represented by counsel or not) for undertaking the
IAC in a timely fashion and in good faith. Id.
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located at an address in Phoenixville, Pennsylvania, which was provided to defense counsel by
the U.S. Post Office as a possible forwarding address.4 At least one of the Plaintiffs received a
copy of the Defendants’ motion on December 28, 2013, as indicated by the signature on the
receipt, which is not readable. (Doc. 23 / Exh. A). Since receipt of Defendants’ motion,
Plaintiffs have not responded in any manner and the time to respond expired approximately three
months ago. 5 See LCvR 7.1(E).
Although Plaintiffs are proceeding pro se, the Court finds that the lengthy delay in
prosecution warrants involuntary dismissal. See e.g., Spencer v. Doe, 139 F.3d 107, 112 (2nd
Cir. 1998) (reversing Rule 41(b) dismissal and cautioning that courts “should be especially
hesitant to dismiss for procedural deficiencies where . . . the failure is by a pro se litigant.””)
(internal citation omitted). Plaintiffs haven’t taken any action to pursue their claim against
Defendants in approximately ten months (since July 2013). Furthermore, Plaintiffs received
“fair notice” of the likelihood of summary dismissal via receipt of Defendants’ Motion to
Dismiss. See Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam); Hudson v.
The Court takes judicial notice that an individual by the name of “Kamran Rezapour” is
charged in two different criminal cases being prosecuted within the Western District of North Carolina
and assigned to Chief Judge Frank Whitney. See United States v. Rezapour, Docket Nos. 3:13CR215;
5:13CR71; consolidated within 3:13CR215-FDW. In that case, the defendant Rezapour is in federal
custody. The May 3, 2013 Detention Order indicates Rezapour consented to detention pending
adjudication. (3:13CR215-FDW / Doc. 6). The docket also reflects that on February 20, 2014, the
defendant tendered a guilty plea to Counts One through Three in the Bill of Information charging
violations of 18 U.S.C. § 1343, 21 U.S.C. §§ 331(a) and 333(a)(2). (3:13CR215-FDW / Docs. 1 , 2
28). Presuming the criminal defendant Rezapour is the Plaintiff Rezapour in the instant civil action, the
Court notes that his wife, Tina Rezapour, is also a named Plaintiff. There is no indication that Tina
Rezapour is in custody or otherwise unable to communicate with opposing counsel.
4

In the Western District of North Carolina, responses to motions “shall be filed within fourteen
(14) days of the date on which the motion is served, as evidenced by the certificate of service attached to
said motion.” Since service was accomplished on December 28, 2013, Plaintiffs were required to respond
by mid-January 2014.
5

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Hardy, 412 F.2d 1091 (D.C. Cir. 1968) (per curiam). Accordingly, Plaintiffs had an opportunity
to respond to Defendants’ motion and still took no action. Because Plaintiffs have not been
available, engaged, or responsive in any manner to opposing counsel, a less severe sanction
would be ineffective.
IT IS, THEREFORE, ORDERED that Defendants’ Motion to Dismiss is hereby
GRANTED. Accordingly, all claims of Plaintiffs are DISMISSED WITH PREJUDICE as to
both Defendants, namely, Earthlog Equity Group, Inc., and Robert E. Arms, pursuant to FED. R.
CIV. P. 41(b).

Signed: April 15, 2014

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