Fromhart v. Tucker et al

Filing 94

MEMORANDUM OPINION AND ORDER GRANTING 88 THIRD-PARTY DEFENDANT'S MOTIONFOR DIRECT ENTRY OF FINAL JUDGMENT AND DISMISSING PLAINTIFF FROMHART'SREMAINING CLAIMS WITHOUT PREJUDICE. The Clerk is DIRECTED to dismiss this civil action and strike it from the active docket of this Court. Signed by Senior Judge Frederick P. Stamp, Jr. on 8/7/2013. (copy to Defendant via U.S. mail; copy to all counsel of record via CM/ECF).(nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES BRADLEY FROMHART,
Plaintiff,
v.

Civil Action No. 5:11CV97
(STAMP)

FRANCIS C. TUCKER,
GERALD JACOVETTY
and RANDY GOSSETT,
Defendants,
and
FRANCIS C. TUCKER,
Third-Party Plaintiff,
v.
STEVEN L. THOMAS,
Third-Party Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING THIRD-PARTY DEFENDANT’S MOTION
FOR DIRECT ENTRY OF FINAL JUDGMENT
AND DISMISSING PLAINTIFF FROMHART’S
REMAINING CLAIMS WITHOUT PREJUDICE
On January 14, 2013, counsel for plaintiff and counsel for the
third-party

defendant

appeared

for

the

pretrial

conference

previously scheduled by the August 7, 2012 amended scheduling order
in this case.

Pro se defendant and third-party plaintiff Francis

C. Tucker (“Tucker”) did not appear at this conference.

At the

conference, both counsel present indicated that defendant and
third-party plaintiff Tucker had, since the withdrawal of his
counsel, ceased to participate in this litigation. Counsel for the
plaintiff also indicated that the plaintiff intended to file a

written motion for default against defendant Tucker.

This Court

then vacated the scheduling order pending a ruling on any motion
filed by the plaintiff.

As of the date of this order, the

plaintiff has failed to file any motion or request any action in
this case.
As a result of the failure of plaintiff James Bradley Fromhart
(“Fromhart”) to file a motion or otherwise prosecute his claims
against Tucker, on July 18, 2013, this Court entered an order
scheduling a show cause hearing for August 5, 2013. In this order,
this Court directed plaintiff Fromhart, his counsel, and defendant
Tucker to appear before this Court at the show cause hearing, and
directed the plaintiff to show cause why his claims against
defendant Tucker should not be dismissed for failure to prosecute.
At the hearing on August 5, 2013, no party, including counsel for
the plaintiff, appeared.

It is noted that no party, including

counsel for the plaintiff, gave this Court any indication that they
would not attend the hearing on August 5, 2013.1
Further, on July 3, 2013, this Court granted the third-party
defendant’s motion for summary judgment.

This memorandum opinion

and order represented the resolution of all claims in this case
except plaintiff Fromhart’s claim against defendant and third-party
plaintiff

Tucker.

Third-party

defendant

Steven

L.

Thomas

(“Thomas”) then filed a motion for direct entry of judgment on this

1

Further investigation also indicates that all parties
received notice of this Court’s order scheduling the hearing prior
to the date and time scheduled for the hearing.
2

Court’s memorandum opinion and order granting summary judgment in
his favor pursuant to Federal Rule of Civil Procedure 54(b).

This

Court directed pro se defendant and third-party plaintiff Tucker to
respond in opposition to this motion for direct entry of judgment
on or before August 1, 2013.

Defendant and third-party plaintiff

Tucker has failed to respond as of the date of this order.
A.

Plaintiff Fromhart’s claims against defendant Tucker
Under Federal Rule of Civil Procedure 41(b), a court may

dismiss a civil action upon motion of a defendant if a “plaintiff
fails to prosecute or to comply with these rules or a court order.”
The Supreme Court has also determined that a court may dismiss a
civil action under these circumstances on its own motion.
Wabash R.R., 370 U.S. 626 (1962).
severe

sanction,

dismissal

under

Link v.

However, as dismissal is a
circumstances

of

failure

to

prosecute “must be tempered by a careful exercise of judicial
discretion.”

Bush v. USPS, 496 F.2d 42, 44 (4th Cir. 1974)

(internal quotation marks omitted).

Further, courts are reluctant

to punish a party for the behavior of his attorney.

Id.

In this circumstance, this Court finds that the plaintiff’s
consistent failure to prosecute his case or to adhere to orders of
this Court mandates dismissal. While it could be said that counsel
for the plaintiff was to blame for the plaintiff’s failure to file
any motion following the pretrial conference in January, the
plaintiff himself was directed to appear at the show cause hearing
on August 5, 2013 and failed to do so.

3

See ECF No. 91 *2.

Further, it is noted that, following roughly seven months of
inaction by the plaintiff, this Court offered him an opportunity to
present this Court with cause why the sanction of dismissal should
not be invoked. The plaintiff failed to exercise this opportunity.
Accordingly, it is clear that neither the plaintiff nor his counsel
have exhibited any intention of following the orders of this Court
or of prosecuting the plaintiff’s claims against defendant Tucker
any further.

The plaintiff’s claims against defendant Tucker are

thus dismissed without prejudice.
B.

Third-party defendant Thomas’ motion for direct entry of

judgment
Federal Rule of Civil Procedure 54(b) allows a court to enter
judgment on a single claim in a multi-claim case whenever the court
“expressly determines that there is no just reason for delay.”

In

order to determine whether there is no just reason for delay in
entering judgment on a single claim in a multi-claim case, the
Court must consider a number of factors, including:
(1) the relationship between the adjudicated and
unadjudicated claims; (2) the possibility that the need
for review might or might not be mooted by future
developments in the district court; (3) the possibility
that the reviewing court might be obliged to consider the
same issue a second time; (4) the presence or absence of
a claim or counterclaim which could result in a set-off
against the judgment sought to be made final; (5)
miscellaneous factors such as delay, economic and
solvency considerations, shortening the time of trial,
frivolity of competing claims, and the like.
MCI Constructors, LLC v. City of Greensboro, 610 F.3d 849, 855 (4th
Cir. 2010).

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In this case, this Court believes that direct entry of
judgment against Tucker based upon this Court’s granting of summary
judgment in favor of third-party defendant Thomas is appropriate.
Plaintiff Fromhart’s claims in this case were all contract-related
claims dealing with a number of loans allegedly granted to Tucker
by Mr. Fromhart.

Tucker’s claim against third-party defendant

Thomas, on the other hand, was a claim in tort for professional
negligence relating to alleged legal advice given by Mr. Thomas to
Tucker relating to these loans.

Tucker did not claim that Mr.

Thomas was liable in his place for any liability he owed to Mr.
Fromhart relating to the loans, but only asked for tort damages
from Mr. Thomas related to any liability that he may have been
found to have to Mr. Fromhart.

Accordingly, while there was some

relationship between the remaining claim of Mr. Fromhart against
Tucker as to the possible extent of damages that Tucker may have
been able to claim against Mr. Thomas had liability been found,
neither of the claims were reliant upon the other in terms of any
liability determination.
Further, this Court found that Mr. Thomas could not have been
liable to Tucker for professional negligence in any capacity
because Mr. Thomas never represented or formed an attorney-client
relationship with Tucker personally. As such, no later decision of
this Court regarding Tucker’s liability to Mr. Fromhart would have
any effect on Mr. Thomas’s liability to Tucker. Also, because this
Court found that Mr. Thomas could not be liable to Tucker in any

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amount relating to any alleged advice given regarding the loans
given to Tucker by Mr. Fromhart, no damages award exists to be
altered or offset by any determination of Mr. Fromhart’s claim
against Tucker.

As such, this Court finds that there is no just

cause for delay in granting final judgment against Francis Tucker
on this Court’s memorandum opinion and order granting summary
judgment to Mr. Thomas.
Conclusion
For the reasons stated above, third-party defendant Steven L.
Thomas’ motion for direct entry of judgment on this Court’s
memorandum opinion and order granting his motion for summary
judgment is GRANTED.

Third-party plaintiff Francis C. Tucker’s

claims against third-party defendant Thomas are dismissed with
prejudice, and the Clerk is DIRECTED to enter judgment on thirdparty plaintiff Tucker’s claim against third-party defendant Thomas
pursuant to Federal Rule of Civil Procedure 54(b).

Further,

plaintiff Fromhart’s remaining claims against defendant Tucker are
hereby

DISMISSED

WITHOUT

PREJUDICE

for

failure

pursuant to Federal Rule of Civil Procedure 41(b).

to

prosecute

The Clerk is

DIRECTED to dismiss this civil action and strike it from the active
docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit copies of this order to
counsel of record herein.

Pursuant to Federal Rule of Civil

6

Procedure 58, the Clerk is directed to enter judgment on this
matter.
DATED:

August 7, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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