United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
WILLIAM L. OSTEEN, JR., District Judge
before this court is a Motions to Dismiss Lawsuit with
Prejudice, [or alternatively] for Summary Judgment filed by
Defendants Chaunesti Webb (“Webb”) and Manbites
Dog Theater Company (“Manbites Dog”). (Doc. 61.)
Pro se Plaintiff Meg Henson Scales (“Plaintiff”)
has filed a response (Doc. 67), and Defendants have replied.
(Doc. 69.) Defendants have also filed a Motion for
Attorneys' Fees & Costs Associated with Hearing Held
Jan. 24, 2017. (Doc. 64.) Defendants filed a Notice and
Alternative Reply (Doc. 71) noting that Plaintiff failed to
respond to this motion.
has filed a Motion and a Supplemental Motion for Use of Skype
or Telephone for Scales v. Webb and Man Bites Dog Theater and
Summary Judgment (Docs. 68, 72), to which Defendants have
responded (Doc. 70.) Plaintiff has also filed an additional
pleading (Doc. 73) which purports to respond to
Defendants' motion to dismiss or alternatively, for
summary judgment (Doc. 61). Plaintiff has filed an additional
pleading entitled “Plaintiff's Reply to
Defendants.” (Doc. 76.)
matters are now ripe for resolution, and for the reasons
stated herein, Defendant's motions will be granted and
Plaintiff's motion will be denied.
filed an Amended Complaint on June 25, 2015. (Doc. 19.) On
July 13, 2015, Manbites Dog filed an Answer and Defenses to
the Amended Complaint (Doc. 22), and Webb filed an Answer and
a Motion to Dismiss Amended Complaint and for Judgment on the
Pleadings. (See Docs. 23, 24.) This court denied Defendant
Webb's motion to dismiss (Doc. 36). Plaintiff's
attorney was allowed to withdraw and Plaintiff elected to
proceed pro se. (Docs. 38, 44.)
December 19, 2016, Defendants filed a Report of
Plaintiff's Non-Compliance and Motion for Relief in the
Nature of Order to Show Cause due to Plaintiff's refusal
to participate in discovery and scheduled mediation. (Doc.
53.) Magistrate Judge Joi Elizabeth Peake set a hearing on
Defendants' motion for order to show cause for January
24, 2017, at 10:00 a.m. (Doc. 54.) Magistrate Judge Peake
specifically explained in the order and in the docket entry
itself (in capital letters and bold font) that “failure
to appear will result in this case being dismissed for
failing to prosecute and for violation of this order.”
(Id. at 2.) Plaintiff failed to appear at the
hearing, but called the Clerk's Office claiming that she
was unaware of the hearing until that morning. (Doc. 59 at
is a resident of New York City and author of a 1995 essay
titled “Tenderheaded: Or, Rejecting the Legacy of Being
Able to Take It, ” (“Tenderheaded”).
(Amended Complaint (“Am. Compl.”) (Doc. 19)
¶¶ 8, 11.) According to Plaintiff, the essay uses
Plaintiff's childhood memories and the history of the
Civil Rights movement to criticize what Plaintiff refers to
as “strongblackwoman, ” which is a
“pain-enduring, self-denying ‘anti-hero' who
is ‘culturally valued in direct proportion to her
personal sacrifice.'” (Id. ¶ 11.)
Plaintiff's essay was published in 2001 by Simon &
Schuster as the title essay in an anthology entitled:
“Tenderheaded: A Comb-Bending Collection of Hair
Stories” (“the anthology”). (Id.
¶ 12.) The anthology was copyrighted on March 23, 2001,
and Plaintiff copyrighted her individual essay on May 2,
2012. (Id. ¶¶ 14-15.) Defendant Webb
allegedly obtained and read a copy of Tenderheaded at some
point prior to March of 2012. (Id. ¶ 16.)
Webb completed a play entitled “I Love My Hair When
It's Good: & Then Again When It Looks Defiant and
Impressive” (“I Love My Hair”) sometime on
or about March 8, 2012, allegedly copying several passages
from Tenderheaded directly into her script. (Id.
Webb put on a performance run of the play at Defendant
Manbites Dog's theater between March 8 and March 17,
2012, selling out each night the play was performed. (Am.
Compl. ¶¶ 25-26.) After this run of performances,
Defendant Webb emailed Plaintiff to request permission to use
sections of Tenderheaded, which Plaintiff denied, requesting
that Defendant not use her work. (Id. ¶¶
30-32.) After this exchange, a revised version of “I
Love My Hair” was again performed at Manbites Dog
Theater, between January 17 and February 1, 2014.
(Id. ¶ 36.)
DEFENDANTS' DISPOSITIVE MOTIONS
court finds that Defendants' pending motion (Doc. 61)
seeking dismissal pursuant to Fed.R.Civ.P. 41(b) is
dispositive and will therefore address it first.
Civ. P. 41(b) provides that:
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.
Federal Rules of Civil Procedure recognize that courts must
have the authority to control litigation before them, and
this authority includes the power to order dismissal of an
action for failure to comply with court orders.”
Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989). However,
“dismissal is not a sanction to be invoked
lightly.” Id. Further, “a district court
must be explicit and clear in specifying that failure to meet
its conditions will result in prejudicial dismissal.”
Choice Hotels Int'l, Inc. v. Goodwin & Boone, 11 F.3d
469, 472 (4th Cir. 1993).
is without question a strong preference that cases be decided
on the merits. See, e.g., United States v. Shaffer Equip.
Co., 11 F.3d 450, 453 (4th Cir. 1993). Nevertheless, in this
case, Plaintiff has refused to participate in discovery or
the required mediation, failed to appear for a hearing after
being ordered to do so, and engaged in non-responsive
personal attacks in lieu of addressing issues on the merits.