Scarborough v. Lifepoint Inc

Filing 65

ORDER RULING ON REPORT AND RECOMMENDATION adopting 62 Report and Recommendation granting 54 Motion to Dismiss/Lack of Prosecution, filed by Lifepoint Inc Signed by Honorable Richard M Gergel on 12/12/2012. (sshe, )

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IN THE UNITED STATES DISTRICT COlU~· CL[Fi'C GHt~R\[;~r:l~t sc
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
ZOIZ DEC 13 A I() 2q
Larry D. Scarborough,
Plaintiff,
v.
Lifepoint Inc.,
Defendant.

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CIA No.: 2: ll-cv-438-RMG

ORDER

This matter comes before the Court on the Report and Recommendation of the Magistrate
Judge recommending this Court dismiss this action with prejudice for lack of prosecution and
failure to comply with the Court's orders pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure. (Dkt. No. 62). As explained below, the Court agrees with and adopts the Report and
Recommendation of the Magistrate.
Background

Plaintiff filed this employment action in the Charleston County Court of Common Pleas
and Defendant removed it to this Court on February 23, 2011. (Dkt. No.1). The case was
automatically referred to a United States Magistrate Judge for all pretrial proceedings pursuant to
the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC. Subsequently,
Defendant filed a motion to compel on Apri130, 2012 (Dkt. No. 41) and the Magistrate entered a
text order directing Plaintiff to file a response (Dkt. No. 52), but Plaintiff filed no response. On
September 28, 2012, Defendant moved to dismiss for lack of prosecution (Dkt. No. 54).
Plaintiff s counsel subsequently informed the Court she could no longer represent Plaintiff.
(Dkt. No. 55). The Court directed Plaintiffs counsel to move to be relieved as counsel and to
provide her client with notice of the motion. (ld.). Plaintiff s counsel then filed a motion to

withdraw (Dkt. No. 56) and represented that she served a copy of the motion on Plaintiff at his
last known address, but that she had been unable to locate Plaintiff to obtain his consent to the
motion. The Court granted the motion to withdraw, and ordered the Plaintiff to obtain new
counsel within 20 days or indicate his desire to proceed pro se in this matter. (Dkt. No. 59). The
time for Plaintiff to obtain new counselor notify the Court of his pro se status expired without
response. The Magistrate then issued its Report and Recommendation recommending this action
be dismissed with prejudice for lack of prosecution pursuant to Rule 41(b) of the Federal Rules
of Civil Procedure. (Dkt. No. 62). Plaintiff failed to file timely objections to the Report and
Recommendation.

LawlAnalysis
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making
a de novo determination of those portions of the Report and Recommendation to which specific
objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge." 28 U.S.c. § 636(b)(1). This
Court may also "receive further evidence or recommit the matter to the magistrate judge with
instructions." Id
After a thorough review of the record, the Court finds the Magistrate applied sound legal
principles to the facts of this case.

The Magistrate properly applied Federal Rule of Civil

Procedure 41(b) and the factors discussed in Chandler Leasing Corp. v. Lopez, 669 F.2d 919,
920 (4th Cir. 1982), in concluding that the present action should be dismissed with prejudice for

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failure to prosecute.

Accordingly, the Court agrees with and adopts the Report and

Recommendation of the Magistrate.

Conclusion

For the reasons set forth above, the Court agrees with and adopts the Report and

(b(c

Recommendation of the Magistrate. (Dkt. No. 62). Accordingly, this action is dismissed with

prejudice for lack of prosecution pursuant to Rule 41

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Richard Mark
United States District Court Judge

December (2,,2012
Charleston, South Carolina

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