Dixon v. Live Nation Worldwide, Inc.
MEMORANDUM OPINION & ORDER pursuant to the 21 MOTION to dismiss for failure to participate in discovery and failure to prosecute, or in the alternative, motion for summary judgment; granting defendant's motion to dismiss for plaintiff 039;s failure to prosecute this action; directing that this action is dismissed without prejudice. Signed by Judge John T. Copenhaver, Jr. on 8/10/2017. (cc: plaintiff, via U.S. Mail, 544 Burlew Drive, Charleston, WV 25302; counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 2:16-cv-05681
LIVE NATION WORLDWIDE, INC.
doing business as
Memorandum Opinion & Order
Pending is the motion to dismiss for failure to
participate in discovery and failure to prosecute, or in the
alternative, motion for summary judgment, filed by defendant on
June 20, 2017.
Barbara Dixon filed this action on May 25, 2016,
alleging that she was discharged by defendant, her employer, in
violation of the West Virginia Human Rights Act.
On February 2,
2017, Richard Walters, counsel for Ms. Dixon, filed a motion to
withdraw as counsel because, despite numerous attempts to
contact her by phone, email, regular and certified mail, he
could not get in touch with her, which rendered him unable to
confer with her on discovery matters.
The court set a hearing
on the motion for February 13, 2017, and mailed Ms. Dixon a copy
of the order at 544 Burlew Drive, Charleston, West Virginia,
25302, and directed her to appear in person.
Plaintiff did not
appear at the hearing.
Due to Ms. Dixon’s failure to contact Mr. Walters and
her failure to appear at the hearing, the court granted Mr.
Walters’ motion to withdraw on February 15, 2017.
order, the court directed Ms. Dixon to obtain new counsel by
March 16, 2017, after which time she was presumed to continue
the case on a pro se basis.
The court additionally fixed a new
schedule to accommodate the delay caused by plaintiff’s inaction
and warned plaintiff that her failure to comply with the new
schedule could subject her case to dismissal for failure to
Defendant now asserts that since the court’s February
15, 2017 order, no communication from Ms. Dixon has been
received, despite sending a letter to her home address on May 1,
Def. Mem. at 6.
The letter summarized the history of the
proceedings, emphasized Ms. Dixon’s obligation to respond to
defendant’s first set of discovery, and noted that if she did
not participate in discovery, defendant would seek dismissal of
See Def. Ex. 6.
Rule 41(b) of the Federal Rules of Civil procedure
provides for the dismissal of an action for a plaintiff’s
failure to prosecute or to comply with the court’s rules or
In determining whether such a sanction is warranted,
the court balances the following factors: (1) the degree of
personal responsibility on the part of the plaintiff; (2) the
amount of prejudice to the defendant caused by the delay in
prosecution; (3) the presence or absence of a history of
plaintiff deliberately proceeding in a dilatory fashion; and (4)
the effectiveness of sanctions less drastic than dismissal.
Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978).
First, defendant asserts that Ms. Dixon is personally
responsible for the failure to prosecute, such that dismissal of
this action is warranted.
Def. Mem. at 15.
In support of this,
defendant states that when Ms. Dixon was represented by counsel,
she failed to answer his repeated requests to respond to
discovery, which led to his withdrawal.
Since that time,
Ms. Dixon has failed to prosecute in any way or to respond to
Ms. Dixon has failed to meet the
deadlines contained in the court’s February 15, 2017 scheduling
Second, defendant likewise contends that it is
prejudiced by Ms. Dixon’s failure to respond to discovery
requests and additionally have incurred fees and costs in
dealing with her failure to participate in discovery, including
fees associated with conferring with her former counsel.
Third, defendant asserts that Ms. Dixon’s failure to take
any action in the litigation of this case since before December
2016 evidences dilatory conduct, which warrants dismissal of
Id. at 17-18.
The court additionally notes that Ms.
Dixon has failed to respond to the present motion to dismiss.
Finally, defendant does not believe that any sanction
other than dismissal will be effective in that Ms. Dixon last
spoke with her counsel on December 29, 2016, has not responded
to any calls or correspondence, and did not attend the hearing
on the motion to withdraw as directed by the court.
Id. at 12.
The court finds that, when weighing the above factors,
dismissal of the action is warranted for Ms. Dixon’s failure to
prosecute the case.
As discussed, Ms. Dixon has not been in
contact with her former counsel, opposing counsel, or the court
since December 29, 2016, despite repeated attempts to contact
Moreover, the court’s February 15, 2017 order granting Mr.
Walter’s motion to withdraw expressly warned Ms. Dixon that her
case would be subject to dismissal for failure to prosecute if
she did not comply with the new schedule.
See Doc. No. 19.
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
certain events must occur:
Motions under F.R. Civ. P. 12(b), together with
supporting briefs, memoranda, affidavits, or other
Accordingly, the court ORDERSthereof. (All motions
such matter in support that defendant’s motion
unsupported by memoranda will be denied without
to dismiss be, and it herby is, granted forCiv. P. 7.1 (a)).
prejudice pursuant to L.R. plaintiff’s failure
to prosecute this action.for Rule additionally ordered that this
It is 26(f) meeting.
Last day to file Report of Parties= Planning
action be, and it hereby is, dismissed without prejudice.
Meeting. See L.R. Civ. P. 16.1.
Scheduling conference at 4:30 p.m. at the Robert C.
The Clerk is directed to Courthouse in Charleston, before
Byrd United States transmit copies of this order
the undersigned, unless canceled. Lead counsel
to all counsel of record,to appear.
directed any unrepresented parties and to
plaintiff via U.S. Mail at the following address:
Entry of scheduling order.
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is Burlew Drive transmit this Order and
544 requested to
Charleston, WV 25302
Notice to all counsel of record and to any unrepresented
DATED: August 10,5, 2016
DATED: January 2017
John T. Copenhaver, Jr.
United States District Judge
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