Fant et al v. Reser et al

Filing 113

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION adopting 95 Report and Recommendation, granting 85 Motion to Dismiss/Lack of Prosecution with prejudice. Signed by Honorable J Michelle Childs on 3/27/2014. (asni, ) Modified to edit text on 3/27/2014 (asni, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Christina Fant and Alvin E. Jordan, Jr.,

)
)
Plaintiffs,
)
v.
)
)
Debbie Reser (or Reiser); Lake Marion
)
Resort and Marina; City of Sumter, South )
Carolina; Robbie Richburg; Officer Vaughn; )
County of Orangeburg, South Carolina;
)
Officers John Doe(s) et al; County of
)
Clarendon, South Carolina; Officers John )
Doe(s) et al; The Board of Lake Marion
)
Resort and Marina; Directors and Members )
of the Board of Lake Marion Resort and
)
Marina Individually; Water Holidays
)
Owner’s Assn Inc.; Agent Thrower of
)
Orangeburg County Sherriff’s Office;
)
Danny Ellis; Nina Ellis; David Ard;
)
Sumter County, South Carolina; Officers
)
John Doe(s) of Sumter Co. Sheriff’s
)
Department; Darren Quiroz (or different
)
spelling) of Sumter County Law
)
Enforcement; President of Lake Marion
)
Resort and Marina,
)
Frank (last name unknown),1
)
)
Defendants.
)
___________________________________ )

Civil Action No. 5:12-cv-00708-JMC

ORDER AND OPINION

This matter is before the court for review of the magistrate judge’s Report and
Recommendation (“Report”), (ECF No. 95), filed January 8, 2014, recommending that the court
dismiss this action with prejudice for lack of prosecution, failure to cooperate in discovery, and
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The court has previously terminated Defendants Debbie Reser (or Reiser), Lake Marion Resort
and Marina, The Board of Lake Marion Resort and Marina, Directors and Members of the Board
of Lake Marion Resort and Marina Individually, Water Holidays Owner’s Assn Inc., Danny
Ellis, David Ard, and President of Lake Marion Resort and Marina, Frank (last name unknown).
(ECF No. 27.) Additionally, the court has terminated Nina Ellis. (See ECF No. 17.)
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failure to comply with a court order. The magistrate judge’s Report takes into consideration the
Motion of Defendant Thrower for Sanctions for Plaintiff’s Failure to Cooperate with Discovery
(ECF No. 60) and the remaining Defendants’ Joint Motion to Dismiss for Failure to Prosecute, or
in the Alternative Motion to Enlarge Time under Scheduling Order, on Behalf of Defendants
(ECF No. 85). For the reasons set forth below, the court ACCEPTS the magistrate judge’s
Report and DISMISSES this action with prejudice.
PROCEDURAL HISTORY
On March 9, 2012, this action was removed to this court from the Court of Common
Pleas for Orangeburg County, pursuant to 28 U.S.C. § 1331, based on this court’s federal
question jurisdiction. Plaintiffs allege claims under 42 U.S.C. § 1983 for violation of their
Fourth Amendment rights and multiple supplemental state law claims arising out of the search of
their property. (ECF No. 1.)
On August 28, 2012, Defendant Thrower served interrogatories and requests for
production upon Plaintiffs; however, they did not respond to these discovery requests. On
October 11, 2012, the court granted Plaintiffs’ counsel’s (Timothy Griffith) Motion to Withdraw
as Counsel (ECF No. 30) and allowed Plaintiffs thirty (30) days to seek other counsel should
they desire to do so. Plaintiffs’ new counsel (Warren Westbrook Wills, II, and Nicholas Gray
Thomas) made an appearance on October 24, 2012 (ECF No. 38), but Plaintiffs had still not
responded to Defendant Thrower’s discovery requests.

Thereafter, the court extended the

scheduling order deadlines. (ECF No. 41.) On February 19, 2013, the court granted Defendant
Thrower’s Motion to Compel and ordered Plaintiffs to respond to the discovery requests within
fifteen (15) days of the order. (ECF No. 57.) Plaintiffs, however, did not respond to the
discovery requests or the motion to compel.

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On March 14, 2013, Defendant Thrower moved the court for sanctions for Plaintiffs’
failure to cooperate with discovery. (ECF No. 60.) Defendant Thrower sought an order from the
court imposing sanctions upon Plaintiffs, including but not limited to, dismissal of this action.
Id. The court again extended the scheduling order, which allowed the parties to have additional
time to complete discovery. (ECF No. 62.) Still not having received adequate discovery
responses from Plaintiffs2, on July 18, 2013, Defendants filed a Joint Motion to Dismiss for
Failure to Prosecute, or in the Alternative Motion to Enlarge Time Under Scheduling Order, on
Behalf of Defendants (ECF No. 66), because Plaintiffs failed to appear for their properly noticed
depositions. Although Plaintiffs’ new counsel appeared by telephone at the deposition (ECF
Nos. 66-1, 66-2), he filed a Motion to Withdraw as Counsel (ECF No. 65) the same day
indicating that the attorney-client relationship had broken down as a result of Plaintiffs’ failure to
communicate with their counsel and failure to provide adequate responses to Defendants’
discovery requests despite repeated requests by counsel. Id. On October 7, 2013, the court
granted Plaintiffs’ counsel’s motion to withdraw as counsel and again allowed Plaintiffs thirty
(30) days to obtain substitute counsel. (ECF No. 74.)
Plaintiffs have still not responded to these discovery requests. Thereafter, Defendants
noticed the depositions of Plaintiffs for November 18, 2013, but Plaintiffs responded that they
could not attend due to lack of sufficient notice although the depositions were properly and
timely noticed on November 8, 2013. To date, Defendants have still not been able to take the
depositions of Plaintiffs for this case.
Plaintiffs, now responding through their initial counsel3 to Defendants’ Joint Motion to
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Plaintiffs provided partial discovery responses in the form of a list of witnesses and a few
copies of photographs. (ECF No. 102-1.)
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The court granted Timothy Griffith’s request to withdraw as counsel for Plaintiffs. Thereafter,
Plaintiffs obtained other counsel and the court also granted that counsel’s request to withdraw.
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Dismiss for Failure to Prosecute, or in the Alternative Motion to Enlarge Time under Scheduling
Order (ECF No. 85) and objecting to the Report (ECF No. 99), request that the court deny the
motion based on their new counsel’s withdrawal from the case and both Plaintiffs’ health issues
which have never been previously disclosed to this court. (ECF No. 98.) In the Joint Reply of
Defendants to Plaintiffs’ Response to Motion to Dismiss for Failure to Prosecute and to
Plaintiffs’ Objection to Report and Recommendation (ECF No. 102), Defendants request that the
court dismiss this action.
ANALYSIS
The district court has authority under Rule 41(b) to dismiss a case with prejudice, on its
own motion, for failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). 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.” Reizakis v. Loy, 490 F.2d 1132, 1135 (4th
Cir. 1974). Against this policy, the district court must balance considerations of sound judicial
administration, applying four criteria: “‘(1) the degree of personal responsibility of the plaintiff,
(2) the amount of prejudice caused the defendant, (3) the existence of a ‘drawn out history of
deliberately proceeding in a dilatory fashion,’ and (4) the existence of sanctions less drastic than
dismissal.” Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (quoting McCargo v. Hendrick,
545 F.2d 393, 396 (4th Cir. 1976)).
Applying the above criteria to the facts of this case, the first factor weighs strongly in
favor of dismissal because the record supports a finding that Plaintiffs were responsible for the
multiple delays in prosecution. Specifically, when withdrawing as Plaintiffs’ counsel, attorneys
Prior to the filing of the response to Defendants’ Joint Motion to Dismiss for Failure to
Prosecute, or in the Alternative Motion to Enlarge Time under Scheduling Order (ECF No. 85),
this court was not aware that Plaintiffs had retained Mr. Griffith again for this matter, as his
counsel did not indicate another appearance on the record.
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Thomas and Wills, indicated Plaintiffs failed to communicate with counsel and failed to provide
adequate responses to Defendants’ discovery requests despite repeated requests by counsel.
Thus, Plaintiffs are not blameless. Therefore, this case is distinguishable from those in which
courts have been reluctant to punish a client for the conduct of his attorney. See e.g., Hillig v.
Commissioner, 916 F.2d 171, 174 (4th Cir. 1990); Reizakis, 490 F.2d at 1135.
In addition, the second factor - a prejudice to the defendant - heavily favors dismissal.
Plaintiffs’ lack of or delayed responses to interrogatories and documents requests, coupled with
the lack of specificity of those responses handicapped Defendants’ efforts to prepare for trial.
More significantly, Plaintiffs’ failure to adequately respond to discovery requests hindered
Defendants’ ability to make an informed choice whether to risk going to trial or to settle.
Regarding the third factor, whether there has been a history of deliberate delay, the record
amply supports a finding that there was a long history of delay. Plaintiffs have consistently
failed to participate in this litigation. Plaintiffs have repeatedly failed to adequately respond to
Defendants’ interrogatories and requests for production, even after multiple orders compelling
Plaintiffs to respond. When information was finally given, it was incomplete. Additionally,
Defendants have been unable to take the depositions of Plaintiffs for this case. Defendants
noticed the depositions of Plaintiffs for November 18, 2013, but Plaintiffs responded that they
could not attend due to lack of sufficient notice although the depositions were properly and
timely noticed on November 8, 2013.
explanation.

In most instances the delays occurred without any

The meager explanations for the delays supplied by Plaintiffs’ counsel were

inadequate. It is no excuse that Plaintiffs contributed to the problem by failing to respond to
their attorney’s requests for information. Plaintiffs’ responsibility for the delayed filings is an
aggravating, not a mitigating circumstance. Claitt v. Newcomb, 943 F.2d 48 (4th Cir. 1991).

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Consequently, there is no justification for delaying resolution of this case for over two years to
the detriment of Defendants.
Finally, the fourth factor asks whether sanctions short of dismissal with prejudice would
be effective. The record shows that Plaintiffs have repeatedly failed to respond to notices and
filings received from Defendants, provide responses to discovery requests, respond to court
orders, or attend their depositions. Additionally, Plaintiffs have been specifically warned that, if
they continued failing to adequately respond to discovery requests, their case would be
dismissed. Cf. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (Magistrate judge’s prior
explicit warning that a recommendation of dismissal would result from Plaintiff failing to obey
his order was proper grounds for the district court to dismiss suit when Plaintiff did not comply
despite warning). Notwithstanding these instructions and warnings, Plaintiffs have failed to file
an adequate response. See Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 954 n.2 (4th Cir.
1987) (noting that warning to parties was a “salient fact” that distinguishes cases in which
default judgment was the appropriate sanction for discovery abuse under Rule 37 Fed. R. Civ.
P.). Furthermore, the routine sanction of awarding costs and fees would likely have little, if any,
impact on Plaintiffs as they have shown such little respect for the judicial system thus far.
Therefore, in considering whether sanctions less drastic than a dismissal with prejudice exist, no
option other than outright dismissal presents itself. See Mut. Fed. Sav. & Loan Ass’n v. Richards
& Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (rejecting sanctions such as partial summary
judgment or preclusion of certain defenses because without the essential discovery materials, the
case could be more difficult to try); Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S.
639 (1976) (“The most severe in the spectrum of sanctions provided by statute or rule must be
available to the district court in appropriate cases, not merely to penalize those whose conduct

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may be deemed to warrant such a sanction, but to deter those who might be tempted to such
conduct in the absence of such deterrent.”).
This case is now over two (2) years old, yet Plaintiffs have neither pursued their claims
nor have they adequately participated in any discovery sought by Defendants. Plaintiffs have
been warned that, if they failed to respond adequately to discovery requests, their case could be
dismissed. (See ECF No. 87.) Plaintiffs cannot bring an action in this court, fail to prosecute the
action, and then prohibit Defendants from appropriately defending the action. Plaintiffs have
continued to make unverified excuses for their dilatory actions thereby hindering this case from
proceeding to a resolution. At this juncture, Defendants are severely prejudiced in their ability to
defend this action without full participation by Plaintiffs and receipt of discovery responses from
them. Thus, this court finds that dismissal with prejudice is the appropriate sanction in this case.
Therefore, the court ACCEPTS the magistrate judge’s Report and Recommendation and
DISMISSES this action with prejudice.
IT IS SO ORDERED.

United States District Judge
March 27, 2014
Columbia, South Carolina

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