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Rezapour v. Earthlog Equity Group, Inc.

United States District Court, W.D. North Carolina, Statesville Division

April 15, 2014



RICHARD L. VOORHEES, District Judge.

THIS MATTER is before the Court upon Defendants' "Motion to Dismiss with Prejudice for Failure to Prosecute, " filed December 20, 2013, and "Certificate of Service, " filed January 3, 2014. (Docs. 22, 23).

This lawsuit arises out of an agreement between Plaintiffs and Defendants Earthlog Equity Group, Inc. ("Earthlog"), and Robert E. Arms ("Arms") for Defendants to construct an earth shelter home and bomb shelter on real property owned by the Rezapours and located in Ashe County, North Carolina. The parties' communications concerning the proposed transaction /project/build were largely verbal. However, the parties eventually memorialized the terms of their agreement in a writing that was never executed. (Pls.' Am. Compl., Exh. B). Prior to the breaking of ground on the build, Plaintiffs paid Defendants $201, 910.00 of an agreed upon total ($364, 279.75).[1] (Pls.' Am. Compl., ¶¶ 10-11). In or around March 2012, the parties subsequently disagreed about the propriety of additional costs/fees requested by Defendants to be paid prior to beginning construction in connection with changes to the building plan and costs associated with revising blue prints. (Pls.' Am. Compl., ¶¶ 12-13, 15-16). According to Plaintiffs, they orally terminated the agreement shortly thereafter and requested a refund of the $201, 910. (Pls.' Am. Compl., ¶ 14). The earth shelter home and bomb shelter were never built and none of Plaintiffs' money was refunded by Defendants. (Pls.' Am. Compl., ¶ 17).

Defendants move for dismissal of Plaintiffs' claims pursuant to FED. R. CIV. P. 41, which reads in pertinent part:

(b) Involuntary Dismissal; Effect. 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. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule-except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19-operates as an adjudication on the merits.

FED. R. CIV. P. 41(b)(2007). "A dismissal with prejudice is a harsh sanction which should not be invoked lightly in view of the sound public policy of deciding cases on their merits." Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (internal quotation marks and citations omitted). "Against this policy, the district court must balance considerations of sound judicial administration, applying four criteria: (1) the degree of personal responsibility on the part of the plaintiff; (2) the amount of prejudice to the defendant caused by the delay; (3) the presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal." Id. (internal quotation marks and citation omitted).

As recited in Defendants' motion, despite several attempts, counsel for Defendants has been unsuccessful in efforts to discuss matters relevant to the pretrial discovery conference with Plaintiffs directly and/or with Plaintiffs' former counsel.[2] See FED. R. CIV. P. 26(f); WDNC LCvR 16.1(A).[3] As a result, this litigation has been inactive since issuance of the Court's July 1, 2013 Memorandum and Order granting in part and denying in part Defendants' Rule 12(b)(6) Motion and October 1, 2013 Order setting aside the entry of default and default judgment previously entered against Defendants in state court. (Docs. 15, 19). The Court's July and October 2013 Orders are both hereby incorporated by reference.

According to the record, during November and December 2013, copies of the Defendants' motion were sent to Plaintiffs Kamran and Tina Rezapour (at multiple addresses) by certified mail, return receipt requested. (Doc. 22/Exh. C). One or more of the Plaintiffs were located at an address in Phoenixville, Pennsylvania, which was provided to defense counsel by the U.S. Post Office as a possible forwarding address.[4] At least one of the Plaintiffs received a copy of the Defendants' motion on December 28, 2013, as indicated by the signature on the receipt, which is not readable. (Doc. 23/Exh. A). Since receipt of Defendants' motion, Plaintiffs have not responded in any manner and the time to respond expired approximately three months ago.[5] See LCvR 7.1(E).

Although Plaintiffs are proceeding pro se, the Court finds that the lengthy delay in prosecution warrants involuntary dismissal. See e.g., Spencer v. Doe, 139 F.3d 107, 112 (2nd Cir. 1998) (reversing Rule 41(b) dismissal and cautioning that courts "should be especially hesitant to dismiss for procedural deficiencies where... the failure is by a pro se litigant."") (internal citation omitted). Plaintiffs haven't taken any action to pursue their claim against Defendants in approximately ten months (since July 2013). Furthermore, Plaintiffs received "fair notice" of the likelihood of summary dismissal via receipt of Defendants' Motion to Dismiss. See Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam); Hudson v. Hardy, 412 F.2d 1091 (D.C. Cir. 1968) (per curiam). Accordingly, Plaintiffs had an opportunity to respond to Defendants' motion and still took no action. Because Plaintiffs have not been available, engaged, or responsive in any manner to opposing counsel, a less severe sanction would be ineffective.

IT IS, THEREFORE, ORDERED that Defendants' Motion to Dismiss is hereby GRANTED. Accordingly, all claims of Plaintiffs are DISMISSED WITH PREJUDICE as to both Defendants, namely, Earthlog Equity Group, Inc., ...

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