United States District Court, D. South Carolina
Mary K. McDonald, Plaintiff,
Wyndham Resorts Corporation, Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge.
case was removed from the Horry County Court of Common Pleas.
The case number in state court was No. 2017-CP-26-02624.
Plaintiff is a pro se litigant and, therefore, the case was
referred to this magistrate judge for all pretrial
proceedings pursuant to Local Civil Rule 73.02(B)(2)(e)
Factual and Procedural Background
Plaintiff, Mary K. McDonald, filed this case in Horry County,
she did not provide a mailing address on her pleadings.
Instead, she provided an e-mail address and a telephone
number. ECF No. 1-1 at 1. Defendant included an address in
Florence, South Carolina on the certificate of service for
its removal Notice. ECF No. 1 at 4. Instead of filing an
answer to the Complaint, Defendant filed a Motion to Dismiss.
ECF No. 6. The Roseboro Order that was issued on
July 6, 2017 and mailed to the Florence address was returned
undeliverable. ECF No. 14. When this court mailed its
initial Order to Plaintiff at the Florence address on July
12, 2017, the Order was also returned by the post office as
undeliverable. ECF Nos. 12, 15. Being unable to contact
Plaintiff by mail, out of an abundance of caution, the court
called the telephone number that was on Plaintiff's state
court filings in an attempt to obtain a mailing address for
Plaintiff. On August 11, 2017, Plaintiff responded by
telephone, indicating that she was in the process of
obtaining a mailing address so that the court could send her
the documents in this case. She was told that the court can
only accept filings from pro se litigants by mail or in
person. At that time, Plaintiff indicated that she was living
in San Francisco, California and had no permanent mailing
address. The last telephone communication the court had with
Plaintiff was on August 15, 2017. ECF Nos. 17, 18.
August 18, 2017, the court received a Motion for Hearing from
Plaintiff which was mailed in an envelope with an address on
Fifth Street in San Francisco, California. ECF No. 21. On the
same day, the court used that San Francisco address to mail
the initial Order, the Roseboro Order, and
Defendant's Motion to Dismiss to Plaintiff. ECF No. 22.
The August 18th mail was not returned to the court, thus it
appears that Plaintiff received all three of the mailed
October 16, 2017, the Motion for Hearing was denied and the
deadline for responding to the Motion to Dismiss was extended
until November 16, 2017. ECF No. 24. The court mailed the
Order denying the Motion to Plaintiff, as well as copies of
all previously issued Orders and Defendant's Motion to
Dismiss to Plaintiff at the San Francisco address. ECF No.
25. That mailing has now been returned undelivered and the
time for Plaintiff to respond to the Motion to Dismiss has
passed. There have been no further communications, either
written or oral, from Plaintiff since August 18, 2017.
initial Order in this case makes it clear that a pro se
litigant has an obligation to provide an up-to-date mailing
address to the court. The Order reads:
You are ordered to always keep the Clerk of Court advised
in writing (Post Office Box 2317,
Florence, South Carolina 29503) if your address
changes for any reason, so as to assure that orders or other
matters that specify deadlines for you to meet will be
received by you. If as a result of your failure to comply
with this Order, you fail to meet a deadline set by this
court, your case may be dismissed for violating this
Order. Therefore, if you have a change of address
before this case is ended, you must comply with this Order by
immediately advising the Clerk of Court in writing of such
change of address and providing the court with the docket
number of all pending cases you have filed with this court.
Your failure to do so will not be excused by the court.
is aware of this requirement, having been told of it in
telephone conversations with the Clerk's Office during
August and having received this Order in the mail that was
sent to San Francisco, California on August 18, 2017.
However, Plaintiff has not provided the court with a good
mailing address in over three months.
failure to comply with this court's Order warning her of
the need to respond with a good mailing address and the
consequences of failure to respond subjects this case to
dismissal. See Fed. R. Civ. P. 41(b) (district
courts may dismiss an action if a plaintiff fails to comply
with “any order of the court.”); see also
Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989)
(dismissal with prejudice appropriate where warning given);
Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920
(4th Cir. 1982) (court may dismiss sua sponte);
see also General Order, In Re: Procedures in
Civil Actions Filed by Non-Prisoner Pro Se Litigants,
No. 3:07-mc-5015-JFA, at 2 (D.S.C. Sept. 18, 2007) (requiring
a plaintiff to bring a case into proper form or suffer
dismissal without prejudice for failure to prosecute). The
court should not allow a case such as this one to languish on
the docket without participation by Plaintiff.
it is recommended that this case be dismissed without
prejudice for failure to comply with a court order and
failure to prosecute this case in a timely manner. The
parties' attention is directed to the important
information on the following page.
of Right to File Objections to Report ...