United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION AND ORDER
S. Cayer United States Magistrate Judge
MATTER is before the Court on the Defendants'
“Motion[s] to Dismiss” (documents ##9, 13, 15,
17, 19, 24, 28 and 32) and the Court's
“Order” entered June 5, 2017 (document #33)
(advising pro se Plaintiff of her rights under
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975)
and setting a deadline of July 7, 2017 for her to respond).
Plaintiff has not responded to the Court's Order or the
Motions to Dismiss, nor has she requested an extension or
contacted the Court.
matter has been referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) and these Motions are
now ripe for the Court's consideration.
June 5, 2017 Order, the Court ordered:
In accordance with Roseboro v. Garrison, 528 F.2d
309 (4th Cir. 1975), the Court advises Plaintiff, who is
proceeding pro se, that she has a right to respond
to Defendants' Motions. The Court also advises Plaintiff
that failure to respond may result in Defendants being
granted the relief they seek, that is, the DISMISSAL OF THE
COMPLAINT WITH PREJUDICE.
IS THEREFORE ORDERED that:
Plaintiff is allowed until July 7, 2017 to respond to
Defendants' “Motion[s] to Dismiss” (documents
##9, 13, 15, 17, 19, 24, 28 and 32). Document #33 (emphasis
in original). The docket reflects that the Clerk mailed a
copy of the Order to Plaintiff.
District Court has the inherent authority to dismiss a case
for failure to prosecute, and Rule 41(b) “provides an
explicit basis for this sanction.” Doyle v.
Murray, 938 F.2d 33, 34 (4th Cir. 1991). Since dismissal
is a severe sanction, the Court must exercise this power with
restraint, balancing the need to prevent delays with the
sound public policy of deciding cases on their merits.
Dove v. CODESCO, 569 F.2d 807, 810 (4th Cir. 1978).
The Fourth Circuit requires a trial court to consider four
factors before dismissing a case for failure to prosecute:
“(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. Comm'r of Internal
Revenue, 916 F.2d 171, 174 (4th Cir. 1990).
has failed to respond to the Motions to Dismiss as well as
the Court's Roseboro Order. Accordingly, the
undersigned concludes that any sanctions short of dismissal
would not be effective.
IS ORDERED that all further proceedings in this
action, including all discovery, are
STAYED pending the District Judge's
ruling on this Memorandum and Recommendation and Order.
FOR THE FOREGOING REASONS, as well as those stated
in Defendants' briefs, the undersigned respectfully
recommends that Defendants' “Motion[s] to
Dismiss” (documents ##9, 13, 15, 17, 19, 24, 28 and 32)
OF APPEAL RIGHTS
parties are hereby advised that, pursuant to 28 U.S.C.
§636(b)(1)(c), written objections to the proposed
findings of fact and conclusions of law and the
recommendation contained in this Memorandum must be filed
within fourteen (14) days after service of same. Failure to
file objections to this Memorandum with the Court constitutes
a waiver of the right to de novo review by the District
Judge. Diamond v. Colonial Life, 416 F.3d 310,
315-16 (4th Cir. 2005); Wells v. Shriners Hosp., 109
F.3d 198, 201 (4th Cir. 1997); Snyder v. Ridenour,
889 F.2d 1363, 1365 (4th Cir. 1989). Moreover, failure to
file timely objections will also preclude the parties from
raising such objections on appeal. Thomas v. Arn,
474 U.S. 140, 147 (1985); Diamond, 416 F.3d ...