United States District Court, W.D. North Carolina, Charlotte Division
S. Cayer United States Magistrate Judge
MATTER is before the Court following the scheduling
of a telephonic discovery conference and Plaintiff's
failure to retain substitute local counsel as previously
ordered. See “Order Granting Motion to
Withdraw” entered September 5, 2019 (document #27)
(“Plaintiff shall retain substitute local counsel
within fourteen days of this Order.”) Plaintiff has not
retained local counsel.
September 30, 2019, defense counsel contacted the Court's
chambers telephonically and requested a discovery conference
as required by Section III.F of the Pretrial Order and Case
Management Plan (document #25). The Court scheduled a
telephonic discovery conference. Chambers staff emailed the
parties' counsel as follows:
Pursuant to the Scheduling Order, Judge Cayer will hold a
telephone conference on Tuesday, October 8, 2019 at 1:30 pm
to resolve the dispute. Each side should submit to Judge
Cayer via my email and to opposing counsel, a ONE PAGE
summary of their position on the discovery dispute by Monday
October 7, 2019 at 5:00 pm.
Court has reviewed the parties' submissions and concludes
that a discovery conference is unnecessary. Plaintiff has
failed to serve any responses to Defendants' discovery
requests. Accordingly, the Court ORDERS the
Plaintiff to respond to Defendants' Request for
Production of Documents and Interrogatories.
and the imposition of monetary sanctions are remedies
available under Rule 37 for a party's failure to obey
rules governing discovery and orders of the District Court.
See Fed.R.Civ.P. 37(b)(2)(C); National Hockey League v.
Metro. Hockey Club, 427 U.S. 639, 643 (1976); Mutual
Fed. Sav. & Loan v. Richards & Assocs., 872 F.2d
88, 92 (4th Cir. 1989); Wilson v. Volkswagen of America,
Inc., 561 F.2d 494, 504-04 (4th Cir. 1977).
the Court warns Plaintiff that failure to provide full and
complete responses to Defendants' Request for Production
of Documents and Interrogatories or failure to respond to any
other of Defendant's reasonable discovery requests, or to
otherwise comply fully with any of the Court's Orders,
the Local Rules, or the Rules of Civil Procedure may result
in the imposition of sanctions. Sanctions may include
Plaintiff and/or his counsel being ordered to pay
Defendants' costs including reasonable attorney's
fees in their entirety, and may also include dismissal of the
Complaint with prejudice.
the 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 plaintiffs 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).
the Court will allow Plaintiff a final opportunity to retain
local counsel and to show cause why this matter should not be
dismissed for failure to prosecute.
THEREFORE IT IS ORDERED:
1. Within fourteen days of the date of this Order,
Plaintiff shall provide full and complete responses to
Defendants' Request for Production of Documents and
2. Within fourteen days of this Order, Plaintiff shall
retain local counsel.
3. Plaintiff is warned that failure to make a timely
response to this Order may result in
DISMISSAL of this ...