Opinion
7:21-CV-13-M
02-26-2021
MARIAN DUBAR, Plaintiff, v. WELLS FARGO BANK N.A. and HUTCHEN LAW FIRM, Defendants.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones Jr., United States Magistrate Judge
This matter comes before the court to address Plaintiffs failure to respond to the court's January 29, 2021 order, which directed Plaintiff to file an application to proceed without prepayment of fees or pay $400.00, provide proposed summonses for all of the necessary parties for service of this action, and provide sufficient address information on the summonses such that the U.S. Marshal will be able to effect service upon the defendants. [DE-4]. Plaintiff was directed to correct those deficiencies within fourteen days and was warned that "[f]ailure to do so may result in the dismissal of this action without prejudice for failure to prosecute." Id. To date, Plaintiff has not cured the deficiencies.
A court has the inherent power to dismiss a case sua sponte for lack of prosecution or failure to comply with a court order. See Link v. Wabash R..R.. Co., 370 U.S. 626, 629 (1962) ("The authority of a federal trial court to dismiss a plaintiffs action with prejudice because of his failure to prosecute cannot seriously be doubted."); United States v. Merrill, 258 F.R.D. 302, 308 (E.D. N.C. 2009) ("Although Rule 41(b) does not itself provide for sua sponte dismissal, a district court has the inherent power to dismiss a case for lack of prosecution or violation of a court order.") (citations omitted). However, "dismissal is not a sanction to be invoked lightly." Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978)).
Here, Plaintiff has failed to respond to the deficiency order entered on January 29, 2021. Plaintiff was warned that a failure to correct the deficiencies may result in dismissal of the case. Given these failures, it appears Plaintiff lacks the intent to prosecute her claims at this time. Accordingly, it is RECOMMENDED that the case be DISMISSED for failure to prosecute and to comply with the court's order.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until March 12, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-17 (4th Cir. 1985).
SUBMITTED.