United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
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. 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
RULE 41(b) DISMISSAL
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)).
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.
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.
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.
MOTION FOR JUDGMENT ON THE PLEADINGS
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). 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.
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.
Standard of Review
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 &