Mullins et al v. Cabell Huntington Hospital, Inc. et al

Filing 25

MEMORANDUM OPINION AND ORDER dismissing this action pursuant to Federal Rule 41(b) from the docket without prejudice. Signed by Judge Robert C. Chambers on 6/20/2017. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

KERRIEN MULLINS, individually
and as parent, natural guardian and
next friend of J.D., a minor,
Plaintiff,
v.

CIVIL ACTION NO. 3:16-9751

CABELL HUNTINGTON HOSPITAL, INC.,
CAROLYN E. CLARK, M.D., INC., and
CAROLYN E. CLARK, M.D.,
Defendants.

MEMORANDUM OPINION AND ORDER
After granting Plaintiff’s Counsel’s Motion to Withdraw, the Court stayed the instant case
for thirty days to allow Plaintiff to find new counsel or proceed pro se. See Order, ECF No. 24.
The Court directed Plaintiff to file a statement of intent to proceed pro se or have counsel enter an
appearance by June 16, 2017. See id. As the Plaintiff has failed to respond to the Court’s Order,
the issue now before the Court is whether Plaintiff has failed to prosecute her civil action. For
the following reasons, the Court finds that Plaintiff has failed to prosecute this case, and the Court,
therefore, DISMISSES the case without prejudice.
I.

Background
Plaintiff filed this suit against Defendant Cabell Huntington Hospital, Inc. for alleged

negligence during the delivery of Plaintiff’s son, J.D. See Pl.’s Compl., ECF No. 1, at ¶¶ 22-36.
Plaintiff also alleges that Defendant Doctor Carolyn E. Clark negligently assessed the problems

occurring during Plaintiff’s labor. Id. at ¶¶ 38-48. J.D. was diagnosed with hypoxic-ischemic
encephalopathy, a permanent condition that will remain for all of J.D.’s life. Id. at ¶ 20.
The Court issued a scheduling order in the case, setting trial for March 19, 2019. See
Scheduling Order, ECF No. 17. Shortly thereafter, Plaintiff’s counsel moved to withdraw from
the case, citing irreconcilable differences that prevented continued representation. See Mot. to
Withdraw as Counsel, ECF No. 22. The Court directed Plaintiff to respond within two weeks as
to whether she consented or objected to her counsel’s withdrawal. See Order, ECF No. 23.
Plaintiff failed to respond to the Court’s Order, so the Court granted counsel’s motion to withdraw.
See Order, ECF No. 24. In that Order, the Court directed Plaintiff to file a pro se statement of
intent to proceed or to have new counsel file an appearance with the Court by June 16, 2017. Id.
This date has passed without response.
II.

Discussion
Federal Rule of Civil Procedure 41(b) states that “[i]f 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). This rule solidifies the principle “that courts must have the
authority to control litigation before them.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989).
Although the rule does not explicitly provide the power for a court to dismiss a case sua sponte,
district courts have the inherent authority to dismiss a case for failure to prosecute without waiting
for a defendant’s motion. See Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962) (“Neither the
permissive language of the Rule—which merely authorizes a motion by the defendant—nor its
policy requires us to conclude that it was the purpose of the Rule to abrogate the power of courts,
acting on their own initiative, to clear their calendars of cases that have remained dormant because
of the inaction or dilatoriness of the parties seeking relief.”).

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When considering whether to dismiss a case for failure to prosecute, the court should
consider the following four factors: “(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. C.I.R., 916 F.2d 171, 174 (4th Cir. 1990). These factors, along with the specific factual
circumstances of the case, assist the court in determining whether dismissal is appropriate.
Ballard, 882 F.2d at 95-96. If a party “has ignored an express warning that noncompliance with
a court order will result in dismissal, the district court should dismiss the case.” Bey ex rel. Graves
v. Virginia, 546 F. App’x 228, 229 (4th Cir. 2013) (citing Ballard, 882 F.2d at 95-96).
In the Court’s last Order, the Court directed Plaintiff to file a statement of intent to proceed
pro se or have an attorney file an appearance with the Court. See Order, ECF No. 24, at 1-2. If
Plaintiff failed to take action, the Court warned Plaintiff that Defendants could move for
appropriate relief. Id. Although the Order did not directly specify that the appropriate relief
would be dismissal, the Court finds that this warning satisfactorily cautioned Plaintiff that
noncompliance would result in unfavorable consequences. The Fourth Circuit’s four-factor test
further supports the Court’s finding that Plaintiff failed to prosecute.
The first factor determines whether Plaintiff is personally responsible for the
noncompliance. Dismissing a case is an inappropriate remedy if the blame falls to a party’s
counsel rather than to the party itself. See Hillig, 916 F.2d at 174. However, in this case, the
Court has no other evidence to suggest that the blame falls on anyone but Plaintiff. Plaintiff’s
counsel had struggled to communicate with Plaintiff, ending in the motion to withdraw as counsel.
The Court has issued two separate orders requiring Plaintiff to individually respond, but Plaintiff

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failed to report to the Court. Without other evidence indicating that Plaintiff is blameless in the
noncompliance, the Court must conclude that Plaintiff is personally responsible.
The second factor considers the prejudice to the defendant. Here, the parties progressed
towards discovery until communications with Plaintiff broke down. Defendants have not suffered
irreparable prejudice as the delay has not been significant. However, if Plaintiff were allowed to
continue to ignore court orders, Defendants would be prejudiced during discovery and preparation
for trial. Although this factor does not strongly weigh in favor of dismissal, Plaintiff’s complete
lack of communication with the Court and her prior counsel supports some amount of prejudice
caused to Defendants.
The third factor looks to the history of noncompliance in the case. Here, the Court issued
two orders directed specifically towards Plaintiff. The Court included Plaintiff’s address in the
orders to ensure proper delivery. The Court issued its first order on May 1, 2017 but has not
received any communications, in any form, from Plaintiff. Although there is no evidence in the
record that such conduct is deliberate in nature, the complete lack of response weighs against
Plaintiff.
The last factor focuses on other remedies other than dismissal. The Court could issue
other orders to sanction Plaintiff, but the Court does not find that these remedies would be
sufficient. Monetary sanctions and discovery penalties will not force Plaintiff to respond to the
Court’s orders and prosecute this case in a timely fashion. The Court has given Plaintiff two
chances to communicate directly to the Court, and Plaintiff chose to ignore these directives.
Considering the four factors and the failure to respond directly to court orders, the Court finds that
the case shall be DISMISSED for failure to prosecute pursuant to Rule 41(b). The Court raised

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the failure to prosecute issue sua sponte and has no evidence that Plaintiff acted deliberately or in
bad faith, so the Court dismisses the action without prejudice.
III.

Conclusion
Accordingly, the Court finds that Plaintiff has failed to prosecute the case. Pursuant to

Federal Rule 41(b), the Court DISMISSES the action from the docket without prejudice.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.

ENTER:

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June 20, 2017