Rosales v. Catawba County Schools

Filing 22

ORDER adopting 15 Memorandum and Recommendations and denying as moot the 10 First Motion to Dismiss; granting with modification the 16 Second Motion to Dismiss and 20 Renewed Motion to Dismiss. Rosale's civil action is dismissed without prejudice and the Clerk is directed to remove the case from the Court's docket. Signed by District Judge Richard Voorhees on 1/18/2017. (Pro se litigant served by US Mail.)(kby)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CASE NO. 5:15-CV-00149-RLV-DCK
EFREN ROSALES,

v.

CATAWBA COUNTY SCHOOLS,

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ORDER

THIS MATTER IS BEFORE THE COURT on a Memorandum and Recommendation
(“M&R”) by Magistrate Judge David C. Keesler (Doc. 15) and on Catawba County Board of
Education’s (“CCBE”) Second Motion to Dismiss (Doc. 16) and its Renewed Motion to Dismiss
(Doc. 20). Neither Plaintiff Efren Rosales nor CCBE filed any objections to the M&R and Rosales
did not respond to CCBE’s Motions despite this Court issuing Rosales a Roseboro1 Order. (See
Doc. 21). Accordingly, the M&R and CCBE’s Motions are ripe for disposition. For the ensuing
reasons, the M&R is ADOPTED, CCBE’s First Motion to Dismiss (Doc. 10) is DENIED AS
MOOT, CCBE’s Second Motion to Dismiss (Doc. 16) and Renewed Motion to Dismiss (Doc. 20)
are GRANTED WITH MODIFICATION, and Rosales’s civil action is DISMISSED
WITHOUT PREJUDICE.
I.

FACTUAL AND PROCEDURAL HISTORY
Plaintiff Efren Rosales brought this civil action under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., alleging discrimination on the basis of race, color, and national
origin. (Doc. 1 at 1-3). Rosales named “Catawba County Schools D/B/A/ Oxford Elementary

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Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975).

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School” as the defendant. Id. at 1. Five months after Rosales filed his Complaint, CCBE
responded by filing its First Motion to Dismiss, in which it argued that “Catawba County Schools”
is not a legal entity and asserted the defenses of lack of personal jurisdiction, insufficient process,
and insufficient service of process. (Doc. 11 at 3-4 (citing N.C. Gen. Stat. § 115C-40 (“The several
boards of education, both county and city, shall hold all school property and be capable of . . .
prosecuting and defending suits for or against the corporation.”))). More than one month after
CCBE filed its First Motion to Dismiss, Rosales responded by filing a one page document entitled
“Amended Complaint to Change the Name of Defendant.” (Doc. 14). Rosales’s responsive filing
stated that he “submits for an Amended Complaint to Change the Name of Defendant to Catawba
County Board of Education.” (Doc. 14). Rosales did not attach an amended complaint to his
responsive filing.
The Court construed Rosales’s responsive filing as a motion to file an amended complaint.
(See Doc. 15 at 3); see also Fed. R. Civ. P. 15(a)(1)-(2) (limiting time to amend pleading as a
matter of course to within twenty-one days of service of pleading or twenty-one days of response
and requiring consent of opposing party or leave of court for all other amendments). The
Magistrate Judge issued an order and M&R, granting Rosales’s motion to file an amended
complaint and recommending that CCBE’s First Motion to Dismiss be denied as moot and without
prejudice to re-file. Id. at 3-4. The order gave Rosales until August 1, 2016 to file his amended
complaint. Id. at 4. Although advised of their right to do so, neither party objected to the M&R.
August 1, 2016 came and went without Rosales complying with the order by filing his
amended complaint or, otherwise, seeking an extension to file his amended complaint. On October
3, 2016, CCBE filed its Second Motion to Dismiss, arguing that Rosales’s failure to file an
amended complaint amounted to a failure to prosecute and warranted dismissal under Fed. R. Civ.

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P. 41(b). (Doc. 16, Doc. 17 at 2-3). On December 1, 2016, CCBE filed a Renewed Motion to
Dismiss, reasserting its Fed. R. Civ. P. 41(b) argument. (Doc. 20). Cognizant of Rosales’s failure
to file an amended complaint or respond to CCBE’s Second Motion to Dismiss, the Court issued
a Roseboro order giving Rosales an additional fourteen days to file a response and advising Rosales
that his failure to respond might result in the court dismissing his civil action with prejudice. (Doc.
21). As of the date of this order, Rosales has not filed a response or an amended complaint.
II.

DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure states:
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.

“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). When confronted with a Rule 41(b)
motion seeking dismissal based on a litigant’s failure to prosecute his case, the district court must
consider four criteria to balance the policy in favor of resolving cases on their merits against the
advancement of sound judicial administration: “(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). Given the harsh consequences inherent to a dismissal with prejudice, as well as
the possibility that the aforementioned criteria may weigh against a dismissal with prejudice, a
district court retains the authority to dismissal an action without prejudice under Rule 41(b). Payne

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v. Brake, 337 F. Supp.2d 800, 803 (W.D. Va. 2004) (citing Semtek Int’l Inc. v. Lockheed Martin
Corp., 531 U.S. 497 (2001); Shoup v. Bell & Howell Co., 872 F.2d 1178, 1180 (4th Cir. 1989));
see also Browne v. Nationwide Prop. & Cas. Ins. Co., 2016 WL 756488, at *4 (S.D. W. Va. Feb.
25, 2016) (relying on evaluation of criteria from Davis to conclude that dismissal without prejudice
for failure to prosecute was appropriate given harsh sanction of dismissal with prejudice).
Having considered the appropriate factors, the Court concludes that it is proper to dismiss
Rosales’s civil action for failure to prosecute but that a dismissal without prejudice is more
appropriate. Looking at the first criteria from Davis, Rosales’s failure to participate in this case
for more than the last six months, including not complying with this Court’s order by filing an
amended complaint by August 1, 2016 and his failure to respond to CCBE’s Second Motion to
Dismiss and its Renewed Motion to Dismiss, counsels strongly in favor of dismissing Rosales’s
civil action. See Compel v. Citi Mortg. Inc., 2005 WL 4908801, at *1 (E.D. Va. Mar. 28, 2005)
(dismissing action after Plaintiff failed to comply with court order by filing amended complaint to
cure defects in original complaint). This is particularly true where Rosales, although appearing
pro se, demonstrated the ability to file appropriate pleadings, comply with deadlines, and request
an extension of time at earlier stages of this action. (See Docs. 1, 2, 12, 14); see also Ramsey v.
Rubenstein, 2016 WL 5109162, at *3 (S.D. W. Va. Sept. 19, 2016) (noting plaintiff’s initial
participation in litigation and the lack of any indication of an intervening event or force preventing
plaintiff from subsequently participating in litigation as evidence that plaintiff was responsible for
failure to prosecute). Furthermore, Rosales is personally responsible for his lack of action where
the Court issued Rosales a Roseboro notice warning Rosales that failure to respond to CCBE’s
Second Motion to Dismiss and its Renewed Motion to Dismiss might result in the dismissal of his
civil action. (Doc. 21). Therefore, the first criteria from Davis favors dismissal with prejudice.

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Looking at the second criteria from Davis, CCBE does not allege any prejudice in either
its Second Motion to Dismiss or its Renewed Motion to Dismiss. (See Docs. 16, 17, 20).
Furthermore, where the defect in Rosales’s Complaint is the naming “Catawba County Schools,”
rather than CCBE, as the defendant, the defect is a technical deficiency and CCBE’s participation
in this civil action demonstrates that CCBE received actual notice of Rosales’s claims. Cf. Fed.
R. Civ. P. 15(c)(1)(C) (permitting amendment to complaint changing party name to relate back to
filing of complaint where proper party received actual notice, knew it was the proper party to the
claim, and is not prejudiced by passage of time). CCBE’s only potential prejudice is the risk of
being forced to defend a suit that Rosales may not have the intent of prosecuting. See Ramsey,
2016 WL 5109162, at *3. Therefore, if sufficient prejudice exist to warrant dismissal, the second
criteria from Davis, at most, favors a dismissal without prejudice rather than a dismissal with
prejudice.
On the third criteria from Davis, although Rosales is at fault for failing to respond to the
Magistrate Judge’s order, there is no evidence on the record that Rosales’s failed to file an amended
complaint for a dilatory purpose. Thus, while the third criteria favors dismissal because of
Rosales’s history of not responding, the factor favors a dismissal without prejudice rather than a
dismissal with prejudice. See id. at *3-4 (finding that failure to participate for a year constituted
evidence of history of non-participation but that absent evidence that plaintiff “acted deliberately
or in bad faith by failing to prosecute . . . dismissal without prejudice is more appropriate”).
Finally, on the fourth criteria from Davis, a litigant’s failure to heed a district court’s
warning that a failure to act may result in dismissal provides sufficient grounds for the district
court to impose the sanction of dismissal upon expiration of the time provided for the party to act.
Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989). In fact, a district court has “little alternative

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to dismissal” after warning a party that a failure to act will result in dismissal because any lesser
sanction would “place[] the credibility of the court in doubt and invite[] abuse.” Id. at 96. Here,
the Roseboro order advised Rosales of the possibility of a dismissal with prejudice, but did so
through permissive language. Accordingly, while the fourth criteria from Davis unquestionably
favors dismissal, it is not apparent that it requires a dismissal with prejudice. Having considered
the four criteria from Davis, the Court concludes that a dismissal without prejudice is the
appropriate sanction for Rosales’s failure to file an amended complaint or otherwise prosecute his
claims for over six months.
III.

DECRETAL
IT IS, THEREFORE, ORDERED THAT:
(1)

The M&R is ADOPTED and CCBE’s First Motion to Dismiss (Doc. 10) is

DENIED AS MOOT;
(2)

CCBE’s Second Motion to Dismiss (Doc. 16) and its Renewed Motion to Dismiss

(Doc. 20) are GRANTED WITH MODIFICATION; and
(3)

Rosales’s civil action is DISMISSED WITHOUT PREJUDICE and the Clerk is

DIRECTED to remove the case from the Court’s docket.

Signed: January 18, 2017

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