Guevara v. HMC Corporation

Filing 33

ORDER granting 28 Motion to Dismiss. This action is dismissed with prejudice. Signed by Honorable Timothy M Cain on 5/10/2013.(gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Jose Luis Parra Geuvara,
Plaintiff,
v.
HMC Corporation,
Defendant.
______________________________

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C.A. No. 8:12-899-TMC

ORDER

This matter is before the court on the a Joint Motion to Dismiss with Prejudice.
(ECF No. 28). For the reasons set forth below, the court grants the motion.
Fed.R.Civ.P. 41(b) provides that a claim may be dismissed “[f]or failure of the
plaintiff to prosecute or to comply with . . . any order of the court” and that such a
dismissal “operates as an adjudication upon the merits.” See Fed.R.Civ.P. 41(b). In
deciding whether to dismiss a case under Rule 41(b), the court must consider the
following factors: (1) the degree of personal responsibility on the part of the plaintiff; (2)
the amount of prejudice the delay caused the defendant; (3) the presence or absence of
a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the
effectiveness and availability of less drastic sanctions. See Davis v. Wiliams, 588 F.2d
69, 70 (4th Cir. 1978)(citing McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir.1976)).
However, those four factors “are not a rigid four-prong test.” Ballard v. Carlson, 882
F.2d 93, 95 (4th Cir. 1989). Rather, the propriety of this type of dismissal “depends on
the particular circumstances of the case.” Id.
Here, Plaintiff’s counsel has set forth the actions he has taken to contact Plaintiff.
Despite these efforts, counsel has been unable to locate Plaintiff. For the past six
months, counsel has attempted to contact Plaintiff by telephone and sent numerous
letters to Plaintiff’s last known address. He attests that he has also searched public

records and has been unable to obtain a new address for Plaintiff or verify Plaintiff’s
current location. Plaintiff’s counsel believes Plaintiff no longer resides in the United
States.
It is solely through Plaintiff's neglect, and not that of his attorney, that this action
has not proceeded. Plaintiff has been specifically warned that a failure to respond to the
motion to dismiss could result in the motion being granted. Because Plaintiff has failed
to file any response to his attorney’s inquiries or to the motion to dismiss, it appears the
Plaintiff no longer wishes to pursue this action. Therefore, the court concludes that this
action should be dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute. No

other reasonable sanctions are available.
Accordingly, IT IS ORDERED that this action is DISMISSED with prejudice for
failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and
the factors outlined in Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th
Cir.1982). See Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989).
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
Andreson, South Carolina
May 10, 2013

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules
3 and 4 of the Federal Rules of Appellate Procedure.

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