United States District Court, D. South Carolina, Charleston Division
WESTON HOUCK UNITED STATES DISTRICT JUDGE
matter is before the Court upon the report and recommendation
("R&R") of United States Magistrate Judge Mary
Gordon Baker recommending that this action be dismissed with
prejudice for failure to prosecute and failure to comply with
the Court's orders. For the reasons set forth in this
Order, the Court adopts the R&R (ECF No. 29) and grants the
defendants' motion to dismiss with prejudice (ECF No.
October 20, 2015, Michael Denniston (the "plaintiff),
represented by counsel, filed this action, alleging
violations of the Family and Medical Leave Act and the
Americans with Disabilities Act. (Compl. ¶¶ 35, 53,
ECF No. 1). In accordance with 28 U.S.C. § 636(b) and
Local Civil Rule 73.02(B)(2)(g) DSC, the case was referred to
the magistrate judge for pre-trial proceedings and an R&R.
March 7, 2016, counsel for the plaintiff filed a motion for
withdrawal of appearance and to stay proceedings for thirty
days. (ECF No. 19). On March 8, 2016, the magistrate judge
issued an Order ("March 8th Order") granting
counsel's motion and staying the proceedings for thirty
days in which time the plaintiff was ordered "to retain
new counsel or to indicate his intention to proceed pro
se....." (Order 1, Mar. 8, 2016, ECF No. 20). The Order
further gave specific notice to the plaintiff that failure to
comply with the Order or failure to meet a deadline may
result in the dismissal of his case. (Id.). A copy
of the Order was mailed to the plaintiff on March 8, 2016.
(See ECF No. 22).
the deadline for the plaintiff to respond expired, the
magistrate judge issued an Order on April 14, 2016, giving
the plaintiff until May 4, 2016 to comply with the March 8th
Order and advising the plaintiff that failure to respond
would subject the action to dismissal with prejudice pursuant
to Rule 41(b) of the Federal Rules of Civil Procedure for
failure to prosecute and failure to comply with the
Court's orders. (Order 1-2, Apr. 14, 2016, ECF No. 27). A
copy of the Order was mailed to the plaintiff on April 14,
2016. (See ECF No. 28).
plaintiff failed to respond to the Court's orders.
Because of the plaintiffs failure to prosecute and failure to
comply with the Court's orders, on May 12, 2016, the
magistrate judge issued an R&R, recommending the action be
dismissed with prejudice pursuant to Rule 41(b) and the
factors outlined in Chandler Leasing Corp. v. Lopez,
669 F.2d 919, 920 (4th Cir. 1982) (per curiam). (R&R 2). The
R&R specifically advised the parties of the procedures for
filing objections thereto and the consequences if they failed
to do so. (R&R 3). No objections have been filed.
STANDARD OF REVIEW
matter is now before the Court for disposition. The
magistrate judge makes only a recommendation to the Court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). The
recommendation carries no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Id. at 270-71. The Court may "accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge ... or recommit
the matter to the magistrate judge with instructions."
28 U.S.C. § 636(b)(1). The Court is charged with making
a de novo determination of any portion of the R&R to
which a specific objection is made. Id. However, in
the absence of a timely filed, specific objection, the Court
reviews the R&R only for clear error. Diamond v. Colonial
Life & Accident Ins. Co.. 416 F.3d 310, 315 (4th Cir.
2005) (citation omitted). Furthermore, the failure to file
specific written objections to the R&R results in a
party's waiver of the right to appeal from the judgment
of the district court based upon such recommendation. See
United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
present case, no objections to the R&R have been filed.
Therefore, the Court reviews the R&R only for clear error.
"'A finding is clearly erroneous when although there
is evidence to support it, the reviewing [body] on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.'" Concrete Pipe &
Prods, of Cal. Inc. v. Constr. Laborers Pension Trust for S.
Cal., 508 U.S. 602, 622 (1993) (alteration in original)
(quoting United States v. U.S. Gypsum Co.. 333 U.S.
364, 395 (1948)).
41(b) governs involuntary dismissals, providing: "[i]f
the plaintiff fails to prosecute or to comply with ... a
court order, a defendant may move to dismiss the action ....
Unless the dismissal order states otherwise, a[n]
[involuntary] dismissal... operates as an adjudication on the
merits." Fed.R.Civ.P. 41(b). "[Dismissal with
prejudice is a harsh sanction which should not be invoked
lightly ...." Davis v. Williams. 588 F.2d 69,
70 (4th Cir. 1978) (citation omitted). In considering a
motion to dismiss with prejudice, the Court must consider:
(1) the degree of personal responsibility on the part of the
plaintiff; (2) the amount of prejudice to the defendant
caused by the delay; (3) the presence or absence of a drawn
out history of deliberately proceeding in a dilatory fashion;
and (4) the effectiveness of sanctions less drastic than
Id. (citing McCargo v. Hedriek. 545 F.2d
393, 396 (4th Cir. 1976)); see also Chandler Leasing
Corp.. 669 F.2d at 920 (citation omitted) ...