United States District Court, D. Maryland
XINIS, UNITED STATES DISTRICT JUDGE
in this case for breach of contract is a motion to dismiss
filed by Defendant Walker & Dunlop, LLC
(“Defendant”) (ECF No. 30). The issues are fully
briefed and the Court now rules pursuant to Local Rule 105.6
because no hearing is necessary. For the reasons stated
below, the motion is granted.
September 29, 2016, the United States District Court for the
District of Nevada transferred the above-captioned case to
this Court. ECF No. 20. That same day, this Court informed
the attorneys who represented Plaintiff Gramercy Parc
Apartments, LLC (“Plaintiff”) in the proceedings
before the Nevada District Court, Elaine Dowling and Harold
Gewerter, that they were not members in good standing of our
bar. ECF No. 21 at 1-2. Thus, their appearance had not been
entered in this case. The attorneys were directed to notify
the Court within fourteen days whether they would be seeking
admission to this Court or if another attorney would be
entering an appearance on Plaintiff's behalf.
Id. The Court's letter was returned
undeliverable as to Mr. Gewerter, and Ms. Dowling did not
respond. See ECF No. 22.
January 6, 2017, the Court reminded Ms. Dowling and Mr.
Gewerter in writing that they had not applied for membership
to this Court's bar or moved to appear pro hac
vice. ECF No. 28. The Court's letter also explained
that, under this Court's Local Rules, only individuals
may represent themselves; “[a]ll parties other than
individuals must be represented by counsel.”
See Local Rule 101.1(a) (D. Md. July 2016).
Therefore, the Court explained that unless it hears from
counsel “by January 19 concerning your representation
of Plaintiff, an order will be issued and mailed directly to
Plaintiff, to show cause why its claims should not be subject
to dismissal.” ECF No. 28. Again, the letter to Mr.
Gewerter was returned undeliverable and Ms. Dowling did not
February 28, 2017, Defendants filed a motion to dismiss
pursuant to Rules 12(b)(6) and 41(b) of the Federal Rules of
Civil Procedure. See ECF No. 30. The Clerk informed
Plaintiff in writing through its registered agent of the
pending motion to dismiss. See ECF No. 31. This
letter was returned undeliverable. See ECF No. 32.
The parties do not provide any other address for Plaintiff
besides the address of Mr. Gewerter, Ms. Dowling, and
Plaintiff's registered agent located at 10161 Park Run
Drive, #150, Las Vegas, NV 89145. However, an attachment to
Defendant's motion to dismiss also includes a separate
business address for Plaintiff. See ECF No. 30-2.
8, 2017, the Court issued an Order to Show Cause asking
Plaintiff to provide good cause within fourteen days of the
Order's issuance why its case should not be dismissed
pursuant to the Court's January 6, 2017 letter and
Fed.R.Civ.P. 41(b). See ECF No. 34. The Clerk sent
copies of the Order to Defendant, Plaintiff's business
address, Plaintiff's registered agent, as well the
attorneys Mr. Gewerter and Ms. Dowling. The mailing to
Plaintiff's registered agent was returned undeliverable
on June 19, 2017 but the other copies appear to have reached
the remaining recipients. It is now June 26, 2017 and
Plaintiff has failed to respond to the Court's Order.
Rule 41(b) of the Federal Rules of Civil Procedure, the
Defendant “may move to dismiss the action or any claim
against it” where the Plaintiff has failed to prosecute
the action or failed to comply with the Rules or the
Court's orders. Unless otherwise stated, dismissal under
Rule 41(b) “‘operates as an adjudication on the
merits, ' that is, with prejudice.” Rahim,
Inc., v. Mindboard, Inc., No. GLR-16-1155, 2017 WL
1078409, at *2 (D. Md. Mar. 22, 2017) (quoting Fed.R.Civ.P.
41(b)). A dismissal with prejudice under Rule 41(b) is
“a harsh sanction which should not be invoked lightly,
” particularly because the Fourth Circuit recognizes
“the sound public policy of deciding cases on their
merits.” Id. (citing Davis v.
Williams, 588 F.2d 69, 70 (4th Cir. 1978)). Accordingly,
the Court must consider four factors before dismissing a case
for failure to prosecute: “(1) the plaintiff's
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. C.I.R., 916 F.2d 171,
174 (4th Cir. 1990). Relevant here, “[w]here a litigant
has ignored an express warning that noncompliance with a
court order will result in dismissal, the district court
should dismiss the case.” Bey ex rel. Graves v.
Virginia, 546 F. App'x 228, 229 (4th Cir. 2013)
(Mem.) (citing Ballard v. Carlson, 882 F.2d 93,
95-96 (4th Cir. 1989)).
Plaintiff has unquestionably failed to prosecute its case.
This is so even after several written warnings that failure
to obtain counsel could result in dismissal of the case and
the Defendant's filing of a dispositive motion.
Ballard, 882 F.2d at 95 (noting the importance of
warning plaintiff prior to dismissal). Application of the
Fourth Circuit's four-factor test compels this
conclusion. Regarding the first factor, although
Plaintiff's counsel rather than Plaintiff repeatedly
ignored the Court's orders, it is proper to hold clients
to “some measure of responsibility both for selecting
competent attorneys and, more important, for supervising
their conduct in representing them under ordinary principles
of agency.” Doyle v. Murray, 938 F.2d 33, 35
(4th Cir. 1991). “But this must always be done with an
eye to the realities of a client's practical ability to
supervise and control his attorney's litigation
conduct.” Id. Here, Plaintiff's counsel
failed to even enter their appearances in this case since its
transfer nine months ago. Plaintiff bears some responsibility
to make sure that it is adequately represented, and any doubt
regarding Plaintiff's knowledge of its counsel's
absence was resolved when the Court sent a copy of the June 8
show cause Order directly to Plaintiff's business
address. Accordingly, this factor favors dismissal.
second factor-prejudice to the defendant-also supports
dismissal. Plaintiff's non-participation in this
litigation has left Defendant “in limbo as to the
status of the case against [it].” J.M. v. Logan
Cty. Bd. of Educ., No. 2:15-CV-04822, 2016 WL 164323, at
*2 (S.D. W.Va. Jan. 13, 2016). Defendants have also incurred
expenses in preparing its motion to dismiss which, if history
is any indication, will go unanswered indefinitely regardless
of any additional efforts the Court may expend to secure a
factor the Court must consider is whether Plaintiff's
conduct is isolated, or is part of a history of dilatoriness,
and the need to deter such conduct. Khepera-Bey v.
Santander Consumer USA Inc., No. WDQ-11-1269, 2013 WL
451325, at *4 (D. Md. Feb. 4, 2013). Plaintiff, through
counsel, has ignored this Court's orders and completely
abdicated its role in prosecuting the case since its
transfer. Cf. J.M., 2016 WL 164323, at *2 (holding
that plaintiff acted in dilatory fashion after a
“nearly complete failure to participate in this civil
action since summons were submitted over five months
ago”); Khepera-Bey, 2013 WL 451325, at *4
(holding that plaintiff acted in a dilatory fashion, in part,
for ignoring the rules and orders of this Court).
Accordingly, this factor also favors dismissal.
in light of Plaintiff's lack of participation in this
case, less drastic sanctions would be ineffective. The Court
has already twice warned Plaintiff and its counsel that the
case would be subject to dismissal unless it demonstrated
some cause as to their failure to prosecute. See
Ballard, 882 F.2d 93, 96 (4th Cir. 1989) (finding that
the plaintiff's noncompliance with show cause order left
district court with “little alternative to
dismissal” because “[a]ny other course would have
placed the credibility of the court in doubt and invited
abuse”); Dickerson v. Board of Educ. of Ford
Heights, Ill., 32 F.3d 1114, 1117 (7th Cir. 1994)
(“Where the pattern of dilatory conduct is clear,
dismissal need not be preceded by the imposition of less
severe sanctions.” ...