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Hewitt v. Liberty Life Assurance Company of Boston

United States District Court, D. South Carolina, Florence Division

September 19, 2018

XAVIER HEWITT, Plaintiff,
v.
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, Defendants.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff originally filed this action in state court, alleging various causes of action arising out of Defendant's denial of Plaintiff's claim for life insurance benefits. Defendant removed the case to this court based on federal question jurisdiction pursuant to 28 U.S.C. § 1331 and the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (ERISA). Plaintiff's counsel is not admitted to practice in this court, and no other counsel has made an appearance on behalf of Plaintiff. Therefore, Plaintiff is proceeding pro se.[1] Presently before the court is Defendant's Motion for Judgment on the Pleadings (ECF No. 24). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion could result in dismissal of his Complaint. Plaintiff has not filed a response. This report and recommendation is entered for review by the district judge.

         II. RULE 41(b) DISMISSAL

         “The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them, and this authority includes the power to order dismissal of an action for failure to comply with court orders. Fed.R.Civ.P. 41(b).” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). “Federal courts possess an inherent authority to dismiss cases with prejudice sua sponte.” Gantt v. Maryland Division of Correction, 894 F.Supp. 226, 229 (D.Md. 1995) (citing Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); White v. Raymark Industs., Inc., 783 F.2d 1175 (4th Cir.1986); Zaczek v. Fauquier County, Va., 764 F.Supp. 1071, 1074 (E.D.Va.1991)).

         The Fourth Circuit, in Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978), recognizing that dismissal with prejudice is a harsh sanction which should not be invoked lightly, set forth four considerations in determining whether Rule 41(b) dismissal is appropriate: (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 dismissal. Id. at 70.

         Subsequently, however, the Fourth Circuit noted that “the four factors ... are not a rigid four-pronged test.” Ballard, 882 F.2d at 95. “Here, we think the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case from those cited by appellant. . . . In view of the warning, the district court had little alternative to dismissal. Any other course would have placed the credibility of the court in doubt and invited abuse.” Id. at 95-96.

         In the present case, Plaintiff is proceeding pro se and, thus, is entirely responsible for his actions. Because Plaintiff has failed to participate in the litigation of his case, the undersigned concludes that he has abandoned this action. No. other conclusion is reasonable.

         III. MOTION FOR JUDGMENT ON THE PLEADINGS

         A. Factual Allegations

         In the alternative, dismissal of this action is also appropriate for the reasons raised in Defendant's motion. Plaintiff was the beneficiary of Damien Hewitt (Decedent) under Group Life Insurance Policy No. SA3-850-291263-01 (the Policy), which Defendant issued to Decedent's employer, Nash Johnson & Sons Farms, Inc. (Nash Johnson). Compl. at ¶ 3; Determination Letter dated August 10, 2017 (Determination Letter) (Ex. B to Def. Motion); Policy (Ex. C to Def. Motion).[2] In the Determination Letter, Liberty Life denied Plaintiff's claim for Accidental Death and Dismemberment (AD&D) benefits on the ground that Plaintiff had failed to provide documentation necessary to evaluate the AD&D Claim. The Determination Letter expressly advised Plaintiff of his right to request a review of the denial of his claim within sixty days of Plaintiff's receipt of the Determination Letter. Along with the Determination Letter, Defendant enclosed a copy of the Policy, which also sets forth the right to request a review within sixty days of the denial. Plaintiff, however, did not seek administrative review of the denial of his claim. Instead, he filed this lawsuit on March 2, 2018.

         Plaintiff's Complaint asserts four causes of action. The first cause of action is a claim for wrongful and unreasonable refusal to pay benefits pursuant to S.C. Code Ann. § 38-63-90. The second cause of action is for breach of contract accompanied by a fraudulent act. Plaintiff's third cause of action is for violation of the South Carolina Unfair Trade Practices Act. The fourth cause of action is a bad faith failure-to-pay insurance benefits claim.

         B. Standard of Review

         Rule 12(c) of the Federal Rules of Civil Procedure allows a party to move for judgment on the pleadings after the pleadings are closed. Such a motion should be granted when, accepting the facts set forth in the pleadings, the case can be decided as a matter of law. Tollison v. B & J Machinery Co., Inc.,812 F.Supp. 618, 619 (D.S.C.1993); see also S & S Const., Inc. of Anderson v. Reliance Ins. Co.,42 F.Supp.2d 622, 623 (D.S.C.1998). The standard is almost identical to the standard employed in considering a Rule 12(b)(6) motion “with the key difference being that on a 12(c) motion, the court is to consider the answer as well as the complaint.” Cont'l Cleaning Serv. v. United Parcel Serv., Inc., 1999 WL 1939249, * 1 (M.D. N.C. 1999) (internal quotations omitted); see also Burbach Broad. Co. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir.2002). In addition to the complaint, the factual allegations of the answer are taken as true, to the extent “they have not been denied or do not conflict with the complaint.” Pledger v. North Carolina Dep't of Health & Human Servs., 7 F.Supp.2d 705, 707 (E.D. N.C. 1998); Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D. N.C. 1991) (citing 5 Charles Alan Wright & Arthur ...


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