United States District Court, W.D. North Carolina, Asheville Division
Cogbum Jr. United States District Judge.
MATTER is before the court on defendant Robert
Uhren's Motion to Dismiss for lack of Prosecution and
Motion to Compel Discovery (#48). Plaintiff, who is
represented by a member of the Bar of this Court, Kristin
Harmon Lang, has not filed a Response within the time
provided by Local Civil Rule 7.1. Rather than immediately
dismiss the action or impose some other sanction, the Court
believes it appropriate to discuss the relevant procedural
history of this case and then schedule Defendant Uhren's
motions for a hearing.
Complaint was filed by Mary March Exum on behalf of plaintiff
on April 13, 2017. On June 7, 2017, Ms. Exum was suspended
from the practice of law by the North Carolina State Bar.
See 16DHC18, N.C. S.B. On July 11, 2017, Ms. Lang
appeared on behalf of plaintiff, and on August 29, 2017, this
Court sua sponte terminated Ms. Exum as counsel of
record as she no longer possessed a valid North Carolina Bar
License, which is necessary for regular admission and
continued practice in this Court.
November 20, 2017, Defendant Uhren filed the instant Motion
to Dismiss for lack of Prosecution and Motion to Compel
Discovery (#48). Those motions and the supporting briefs were
filed and served on counsel for plaintiff that same day via
ECF. The day after plaintiff's Response to those motions
was due to be filed,  Ms. Lang filed a Motion to Withdraw from
representation of plaintiff. In that motion, Ms. Lang
represented that plaintiff's mother, who possessed a
power of attorney, had consented to the withdrawal.
December 6, 2017, Ms. Lang's Motion to Withdraw was
denied by Judge Howell, who found that counsel had not
complied with provision of the Local Civil
Rules requiring that she reflect consultation
with the plaintiff,  and that withdrawing from representation
when a Response was due was not, in any event,
appropriate. In denying the request, Judge Howell
advised Ms. Lang that plaintiff's Response was due
December 7, 2017.
four days after the enlarged deadline, no response or request
for extension has been filed. The Court has, however, heard
from Ms. Janaven Land, plaintiff's mother by way of
letter dated December 8, 2017, and received December 11,
2017. Letter (#56). Attached to that letter are copies of
what purport to be: a retainer agreement with Ms. Exum; a
check for $5, 000.00 made out to Ms. Exum; and a letter from
Ms. Exum advising her of the upcoming change in
representation due to her suspension.
point, the Court has come to no conclusions as to why the
deadline has been missed and notes well that taking over
litigation for a suspended lawyer is difficult and
problematic. Putting aside for the moment concerns as to
representation, Defendant Uhren substantively seeks dismissal
as a sanction for plaintiff's failure to prosecute or
participate in discovery. Rule 37(d) requires this Court to
impose the least onerous yet effective sanction for failure
to participate in discovery and Rule 41(b) provides for
involuntary dismissal as a last resort. See Mut. Fed.
Sav. & Loan Ass'n v. Richards & Associates,
Inc., 872 F.2d 88, 92 (4th Cir. 1989). The Court will
calendar Defendant Uhren's motions for hearing and Ms.
Lang is advised that her presence at that hearing is
IS, THEREFORE, ORDERED that Defendant Uhren's
Motion to Dismiss for lack of Prosecution and Motion to
Compel Discovery (#48) be calendared for hearing. The
appearance of counsel for Defendant Uhren and counsel for
Plaintiff Spann is required.
Land is welcome to attend the hearing as the Court notes
that, by her letter, she is an interested party, and the
Clerk of Court is instructed to send Ms. Land a courtesy copy
of the notice of the hearing and this Order.
 Members of the Bar of this Court are
served via ECF and do not receive the additional three days
for filing. ...