Winkler v. Russell
MEMORANDUM OPINION AND ORDER directing that Oxford House's 23 MOTION to Dismiss is granted. Further directing that this action is dismissed without prejudice and stricken from the docket. Signed by Judge John T. Copenhaver, Jr. on 8/30/2011. (cc: attys; Jean Holocker, 2604 Adams Avenue, Huntington, WV, 25704 and Ms. Winkler, Southwestern Regional Jail, Earl Ray Tomblin Industrial Park, 13 Gaston Caperton Drive, Holden, WV 25625 by certified mail return receipt requested) (lca) (Modified title of entry to conform to filed document and to correct typographical errors on 8/30/2011) (skh).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 2:10-0542
OXFORD HOUSE, INC.,
a Maryland Corporation, and
JOHN DOE, unknown person
MEMORANDUM OPINION AND ORDER
Pending is the motion to dismiss filed August 3, 2011,
by defendant Oxford House, Inc. (“Oxford House”).
Plaintiff Barbara Winkler’s counsel moved to withdraw
on February 21, 2011.
The stated reasons included the fact that
counsel had “scheduled numerous appointments for . . . [Ms.
Winkler] to . . . discuss her case as well as to respond to
discovery . . . . [but that she] . . . failed to keep any of the
appointments and has refused to assist counsel in the prosecution
of her case.”
(Mot. to With. at 1).
The court initially scheduled a hearing on the motion
to withdraw for March 8, 2011, but continued the matter to March
24, 2011, in order to assure the presence of Ms. Winkler’s lead
counsel, who was out of the country at the time.
In the March 7,
2011, order continuing the hearing, the court directed Ms.
Winkler’s counsel to undertake their best efforts to notify her
of the obligation to appear at the March 24, 2011, hearing.
Notice was also sent by the court to Ms. Winkler, by
certified mail, return receipt requested, at two addresses where
she had apparently been contacted previously by counsel.
mailing was returned.
The other reflected a return receipt
signature by an individual other than Ms. Winkler.
On March 8,
2011, Paul E. Biser, one of Ms. Winkler’s lawyers who moved to
withdraw, spoke with her by telephone.
He advised Ms. Winkler
that she must appear at the March 24, 2011, hearing.
Ms. Winkler did not appear at the March 24, 2011,
Her counsel suggested she feared she might be
apprehended at that time respecting a parole violation.
indicated through counsel that she nevertheless wished to pursue
her case and perhaps retain counsel who formerly represented her
She has never done so.
Inasmuch as Ms. Winkler did not object to counsel
leaving the case, the court granted the motion to withdraw.
March 25, 2011, the court sent another order to Ms. Winkler at
the two addresses earlier used.
She was instructed that she must
retain substitute counsel by April 14, 2011, or that she would be
treated as proceeding pro se thereafter.
She was also directed
to respond to Oxford House’s motion for summary judgment by May
5, 2011, irrespective of her retention of counsel.
Ms. Winkler has neither retained counsel nor responded
to the dispositive motion.
She also failed to appear at either
the pretrial conference held May 6, 2011, the earlier-scheduled
private mediation session in the case, or any proceedings set
thereafter in this matter.
Oxford House has moved for dismissal of this action
“for Plaintiff’s failure to appear and/or participate in the
pretrial conferences in this matter.”
(Mot. at 1).
sought pursuant to Federal Rule of Civil Procedure 16(f).
appears, however, that Federal Rule of Civil Procedure 41(b) is a
more appropriate device under the circumstances.
provides pertinently as follows:
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.
Fed. R. Civ. P. 41(b).
On or about August 11, 2011, the court learned that Ms.
Winkler had been apprehended on May 12, 2011, respecting the
warrant associated with her parole violation.
On August 11,
2011, the court entered an order directing that a copy of each
the motion to dismiss and a letter to the court by a non-party be
sent to Ms. Winkler at her place of incarceration by certified
mail, return receipt requested.
The order provided as follows:
It is further ORDERED that Ms. Winkler be, and she
hereby is, given leave to respond to both filings no
later than August 25, 2011, which response will be
filed on the public record for inspection by Oxford
House and any interested parties, who may reply thereto
no later than September 6, 2011.
The court cautions Ms. Winkler that her failure to
respond to Oxford House’s motion will likely result in
the dismissal of this action without prejudice.
(Ord. at 1-2).
On August 16, 2011, the court received the return
receipt signed by Ms. Winkler on August 15, 2011.
She has not
responded to the August 11, 2011, order.
An involuntary dismissal for failure to prosecute is a
significant course of action not undertaken lightly.
adjudicating defendant’s motion, the court must balance the need
to prevent delay with the sound public policy of deciding cases
on their merits.
Dove v. CODESCO, 569 F.2d 807, 810 (4th Cir.
These interests are weighed through application of a
four-factor test: “(1) the plaintiff's degree of personal
responsibility; (2) the amount of prejudice caused the defendant;
(3) the presence of a drawn out history of deliberately
proceeding in a dilatory fashion; and (4) the effectiveness of
sanctions less drastic than dismissal.” Hillig v. Comm'r of
Internal Revenue, 916 F.2d 171, 174 (4th Cir. 1990).
Ms. Winkler bears sole responsibility for failing to
participate in this action.
She has been provided multiple
opportunities to appear in person and writing, with explicit
instructions from the court respecting how to proceed.
recently, she has received explicit, cautionary notice respecting
the potential consequences for her claims if she failed to
contact the court as directed.
11, 2011, order is one example.
The notice found in the August
Another instance of such notice
appears in the March 25, 2011, order:
The court may deem the failure to respond [to Oxford
House’s summary judgment motion] . . . as a
representation on . . . [Ms.] Winkler’s part that she
does not object to the relief sought by Oxford House,
Inc., and that judgment may be entered against her
(Ord. at 2).
Respecting the effectiveness of sanctions less drastic,
it is noted again that the threat of dismissal did not goad Ms.
Winkler to respond to Oxford House’s dispositive motion or the
instant motion to dismiss.
While the prejudice to Oxford House
is not great, the court concludes that the balance of the factors
weighs quite significantly in favor of dismissal.
simply cannot proceed without Winkler’s efforts to prosecute it.
She has shown no inclination to do so despite repeated
invitations and admonitions.
The court, accordingly, ORDERS that Oxford House’s
motion to dismiss be, and it hereby is, granted.
It is further
ORDERED that this action be, and it hereby is, dismissed without
prejudice and stricken from the docket.
The Clerk is directed to forward copies of this order
(1) to all counsel of record, (2) to Jean Holocker at 2604 Adams
Avenue, Huntington, West Virginia, 25704, and (3) to Ms. Winkler
at Southwestern Regional Jail, Earl Ray Tomblin Industrial Park,
13 Gaston Caperton Drive, Holden, West Virginia, 25625, by
certified mail, return receipt requested.
John T. Copenhaver, Jr.
United States District Judge
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