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Spann v. North Carolina Department of Public Safety

United States District Court, W.D. North Carolina, Asheville Division

January 5, 2018



         THIS 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 correspondence (#56).

         The 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 counsel.


         I. Background

         In this 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.

         On 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 (#47).

         On 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, [1] 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.[2] 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[3] requiring that she reflect consultation with the actual plaintiff, [4] and that withdrawing from representation when a Response was due was not, in any event, appropriate.[5] In denying the request, the magistrate judge advised Ms. Lang that plaintiff's Response was due December 7, 2017.[6]

         After 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.

         II. The January 4, 2018 Hearing

         At the 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.

         The 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.

         III. Motion to Dismiss for Failure to Prosecute

         In 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 ...

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