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Scales v. Webb

United States District Court, M.D. North Carolina

June 5, 2017



          WILLIAM L. OSTEEN, JR., District Judge

         Presently 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.

         Plaintiff 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.)

         These 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.


         Plaintiff 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.)

         On 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 1.)


         Plaintiff 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.)

         Defendant 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. ¶¶ 17-18.)

         Defendant 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.)


         This 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.

         A. Legal Standard

         Fed. R. 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.

         “The 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).

         There 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. ...

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