United States District Court, W.D. North Carolina, Asheville Division
MATTER is before the court on defendant Robert
Uhren's Motion to Dismiss for Lack of Prosecution and
Motion to Compel Discovery (#48). Plaintiff, while a prisoner
incarcerated by the State of North Carolina, is represented
by an attorney admitted to practice before the Bar of this
Court, Kristin Harmon Lang. After the time for filing a
response to Defendant Uhren's motions had lapsed, this
Court calendared the motions for oral arguments and therein
directed that Ms. Lang personally appear. Plaintiff's
mother, Ms. Land, was also invited to attend the hearing as
the Court noted she was an interested party based on her
Clerk of Court noticed the matter for hearing January 4,
2017, at 10:30 a.m. While Ms. Land and counsel for Dr. Uhren
appeared, Ms. Lang failed to appear, seek a continuance of
the hearing, or in any manner contact this Court or opposing
action, plaintiff contends that defendants have been
deliberately indifferent to his medical needs while housed at
a private state correctional facility. The Complaint was
filed by attorney Mary March Exum on behalf of plaintiff on
April 13, 2017. On June 7, 2017, Ms. Exum was suspended for
five years from the practice of law by the North Carolina
State Bar. See 16DHC18, N.C. S.B. On July 11, 2017,
Ms. Lang entered her appearance on behalf of plaintiff, and
on July 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
continued practice by members of the Bar of this Court.
October 25, 2017, Defendant Uhren filed a Motion to Compel
Initial Disclosures (#41). Counsel for plaintiff did not
respond to that motion, which was granted by the magistrate
judge, Order (#46), who later awarded defense counsel's
fees and costs in bringing that motion. Order (#58). The
petition for award of costs and fees was also uncontested by
plaintiff's counsel. Similarly, the magistrate judge
granted another Motion to Compel Plaintiff's Initial
Disclosures (#44) filed by other individual defendants. Order
November 20, 2017, Defendant Uhren filed the instant Motion
to Dismiss for Lack of Prosecution and Motion to Compel
Discovery (#48). 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, Ms.
Land, possessed a power of attorney for plaintiff and had
consented to the proposed withdrawal. On December 6, 2017, Ms.
Lang's Motion to Withdraw was denied by the magistrate
judge, who found that counsel had not complied with the
provision of the Local Civil Rules requiring that she reflect
consultation with the actual plaintiff,
that withdrawing from representation when a Response was due
was not, in any event, appropriate. In denying the request, the
magistrate judge advised Ms. Lang that plaintiff's
Response was due December 7, 2017.
the instant motion to dismiss and compel ripened on December
7, this Court reviewed the pending motions in chambers. While
it was apparent that Ms. Lang never responded to the
dispositive motions filed by Defendant Uhren, the Court did
not summarily grant the motions, but, in an abundance of
caution, set the motions for hearing and advised Ms. Lang
that her presence was required. Order (#57). Review of the
docket reveals that the Clerk of Court properly set the
hearing for January 4, 2018, and provided counsel for
plaintiff with notice.
The January 4, 2018 Hearing
hearing, Ms. Lang failed to appear. Upon inquiry by the Court
as to her whereabouts, neither opposing counsel for Defendant
Uhren nor Ms. Land knew where she was or had heard from her.
The Court noted that counsel for Defendant Uhren travelled
from Raleigh to Asheville to attend the hearing. Ms. Land
informed the Court that there had been no communication from
Ms. Lang and that she had taken matters up with the North
Carolina State Bar. She also stated that she had never agreed
to Ms. Lang's earlier Motion to Withdraw.
Court then heard Defendant Uhren on his Motion to Dismiss for
Failure to Prosecute. Citing the continued absence of Ms.
Lang, counsel asked that the action be dismissed with
prejudice as plaintiff had failed to prosecute the action.
The Court then expressed its concern with dismissing an
action when it was readily apparent that the failure to
prosecute was the fault of the attorney. Counsel for
Defendant then suggested that based on case law (discussed
infra), the Court could construct a dismissal
without prejudice that would allow the plaintiff an
opportunity to pursue claims in the future, but that such
course of action was not the defendant's first choice.
Motion to Dismiss for Failure to Prosecute
considering whether dismissal is appropriate for failure to
prosecute, the Court has considered Rule 41(b), Federal Rule
of Civil Procedure. Such rule provides for involuntarily
dismissal of an action for “failure to prosecute or to
comply with these rules or a court order….” The
Court of Appeals for the Fourth Circuit has repeatedly noted
that such involuntary dismissal with prejudice is a
“harsh” result and must be employed with caution.
We have noted that involuntary dismissal under Rule 41(b)
“is such a harsh sanction ... [that] it should be
resorted to only in extreme cases.” McCargo v.
Hedrick, 545 F.2d 393, 396 (4th Cir.1976) (quotation
marks omitted). We thus require a district court to consider
four factors when deciding whether to involuntarily dismiss
an action for attorney misconduct. Id. First, the
court must consider the “degree of personal
responsibility on the part of the plaintiff.”
Id. Second, it must determine the “amount of
prejudice to the defendant.” Id. Third, it
must look to the record to see if it indicates “a drawn
out history of ...