United States District Court, D. Maryland
Xinis United States District Judge.
December 24, 2014, Plaintiff Joseph Crussiah
(“Plaintiff”) commenced this action against Inova
Health System (“Inova”). See ECF No. 1.
He submitted a thirteen-count Amended Complaint on February
24, 2015, alleging fraud, defamation, false imprisonment,
malicious prosecution, tortious interference with contract
and business expectancy, civil conspiracy, and intentional
infliction of emotional distress. See ECF No. 6. On
April 7, 2015, Inova filed a motion to dismiss for lack of
personal jurisdiction or for failure to state a claim;
alternatively, Inova moved to transfer the action to the
Eastern District of Virginia. See ECF Nos. 11, 16.
Plaintiff responded on April 27th and also submitted a motion
for sanctions and a motion to compel. See ECF Nos.
17, 18, 19. On November 19, 2015, this Court granted
Inova's motion to dismiss as to Plaintiff's fraud,
defamation, false imprisonment, malicious prosecution, civil
conspiracy, and intentional infliction of emotional distress
claims. See Memorandum Opinion, ECF No. 26. The
motion was denied with respect to Plaintiff's two
tortious interference claims. Id.
then answered the Amended Complaint as to the remaining
counts and the Court issued a scheduling order. In July and
August of 2016, Plaintiff filed a series of letters seeking
permission to file numerous motions. See ECF Nos.
39, 40, 41, 42, 43. One of these letters is titled
“Plaintiff's Proposed Motion for Emergency
Preliminary Injunctive Relief.” See ECF No.
40. The Court denied this request, explaining that it
appeared to be based on allegations of Inova's historic
alleged wrongdoing that cannot be logically be enjoined going
forward. See ECF No. 44 at 2. The Court also denied,
or deferred ruling on Plaintiff's remaining requests in
an Order dated September 15, 2016. See generally ECF
October 13, 2016, Plaintiff filed an interlocutory appeal of
this Court's Order at ECF No. 44. During the seven-month
pendency of the Fourth Circuit Court of Appeals'
decision, the parties did nothing to advance this case; they
did not engage in fact discovery, provide expert disclosures,
or file dispositive pretrial motions. On May 5, 2017, the
Fourth Circuit dismissed Plaintiff's appeal in part,
vacated in part, and remanded for further proceedings.
See ECF No. 52. Specifically, the Fourth Circuit
vacated this Court's decision denying Plaintiff's
motion for preliminary injunction for failure to make
specific findings of fact pursuant to Fed.R.Civ.P. 52(a)(2)
or expressly address the merits of Plaintiff's motion
under Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7, 20 (2008). Id.
20, 2017, this Court attempted to hold a recorded status
conference to assess the posture of the case and discuss next
steps in light of the Fourth Circuit Court of Appeals'
decision. Plaintiff failed to appear. See ECF Nos.
54, 55. The Court therefore rescheduled the telephonic
hearing for July 12, 2017. ECF No. 56. Plaintiff also failed
to appear at the July 12th hearing. The Court noted on the
record during the July 12th hearing that the Court provided
Plaintiff notice via Letter Order to Plaintiff's
last-known address on June 20, 2017 and via phone calls
placed to Plaintiff's last-known telephone number. The
Court also noted that Plaintiff responded to the June 20th
Letter Order, demonstrating that he did in fact receive it.
See ECF No. 57.
August 4, 2017, the Court issued another Letter Order
explaining that this case has stalled and cannot move forward
without Plaintiff's participation. See ECF No.
64. It therefore ordered Plaintiff to show good cause for why
his case should not be dismissed within twenty-one days from
the issuance of that Letter Order. The Court also warned
Plaintiff “that his failure to comply with this
Court's orders, including the failure to appear at any
future hearings, will result in the dismissal of his case
with prejudice.” ECF No. 64 at 2. The docket indicates
that the Clerk sent this Letter Order to the two addresses
associated with Plaintiff-one in Silver Spring, Maryland and
another in Washington, DC. The mailing to Plaintiff's
Washington, DC address was returned undeliverable. The Court
notes that in the June 20th Letter Order, it directed
Plaintiff to contact the Clerk's office to confirm his
mailing address. See ECF No. 56. Although there is
no evidence that Plaintiff complied,  he did submit his response
to the June 20th Letter Order from the same Washington, DC
address on file with the Clerk's office. See ECF
No. 57. Plaintiff never responded to the Court's August
4th Letter Order.
Rule 41(b) of the Federal Rules of Civil Procedure, an action
may be dismissed “[i]f the plaintiff fails to prosecute
or to comply with . . . a court order.” Fed.R.Civ.P.
41(b); Link v. Wabash Railroad Co., 370 U.S. 626,
630-31 (1962) (holding that a district court may invoke Rule
41(b) sua sponte ). “The power to invoke this
sanction is necessary in order to prevent undue delays in the
disposition of pending cases and to avoid congestion in the
calendars of the District Courts.” Link, 370
U.S. at 629-30. 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 district 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 actively pursued his case at the outset, he has
since abandoned his claims over the last several months. This
is so even after the Court expressly warned Plaintiff that
failure to comply with this Court's Orders will result in
the dismissal of his case with prejudice. Ballard,
882 F.2d at 95 (noting the importance of warning plaintiff
prior to dismissal). Consequently, and when applying the
Fourth Circuit's four-factor test, dismissal is required.
the first factor, Plaintiff is proceeding pro se and
bears responsibility for failing to participate in his own
case. He failed to comply with two of this Court's Orders
scheduling conference calls in June and July, 2017. He also
failed to comply with the Court's August 4th Order
directing him to show cause for why his case should not be
dismissed because of his failure to prosecute.
second factor-prejudice to the defendant-also supports
dismissal. As the Court explained in its August 4th Order,
“[t]his case has stalled and cannot move forward
without Plaintiff's participation.” His failure to
prosecute renders Inova significantly hampered in resolving
this case. Cf. J.M. v. Logan Cnty. Bd. of Educ., No.
2:15-CV-04822, 2016 WL 164323, at *2 (S.D. W.Va. Jan. 13,
2016) (“Plaintiffs' non-participation in this
litigation has left Defendants in limbo as to the status of
the case against them.”). Additionally, Plaintiff's
total absence from the litigation prevents the Court
fulfilling the Fourth Circuit's directives on remand
regarding the propriety of injunctive relief.
third factor-whether Plaintiff's conduct is isolated, or
is part of a history of dilatoriness, and the need to deter
such conduct-also favors dismissal. Khepera-Bey v.
Santander Consumer USA Inc., No. WDQ-11-1269, 2013 WL
451325, at *4 (D. Md. Feb. 4, 2013). Plaintiff last
participated in this case a year ago. Since then, he has
failed to comply with every Order issued by this Court.
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). Plaintiff has, in short,
disappeared from this case.
in light of Plaintiff's complete lack of participation,
less drastic sanctions would be ineffective. The Court has
already warned Plaintiff that the case would be subject to
dismissal unless he 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.” (citing
Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir.
1993))). The Court also twice ...