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Willis v. TCSC LLC

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

April 22, 2019

Lori Willis, Plaintiff,
v.
TCSC, LLC, a wholly owned subsidiary of Hendrick Automotive Group d/b/a/ Hendrick Toyota Scion, North Charleston, Defendant.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE

         Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 31) recommending the Court dismiss this action for failure to prosecute. For the reasons set forth below, the Court adopts the R & R as the order of the Court and this action is dismissed.

         I. Background

         Plaintiff Lori Willis filed this action against Defendant alleging violations of the Americans with Disability Act, Family and Medical Leave Act, and nonpayment of wages. On February 20, 2019, the Magistrate Judge issued an order compelling Plaintiff to respond to Defendant's interrogatories and document requests. (Dkt. No. 20.) Plaintiffs counsel subsequently moved to be relieved as counsel as Plaintiff had ceased responding to communications via both phone and email. (Dkt. No. 21.) Plaintiffs counsel served the motion on Plaintiff by mail and e-mail. (Id.) On March 1, 2019, the Magistrate Judge relieved Plaintiffs counsel, and warned Plaintiff that failure to respond to the discovery requests and the Court's order may lead to dismissal, but provided the Plaintiff with an extension until March 15, 2019, to respond. (Dkt. No. 22.) Plaintiff has not responded to the requests. (Dkt. No. 29.) The "court only" docket further reflects that the Clerk attempted to call the Plaintiff twice and left a voicemail, and that Plaintiffs former counsel agreed to attempt to contact Plaintiff again. Defendant therefore moves for dismissal for failure to prosecute. (Dkt. No. 29.) Plaintiffs former counsel thereafter informed the Court that she has been unable to reach Plaintiff via email, text message or mail.[1] (Dkt. No. 30.)

         II. Legal Standard

         The Magistrate Judge makes only a recommendation to this Court that has no presumptive weight. The responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court must make a de novo determination of those portions of the R & R Petitioner specifically object. Fed.R.Civ.P. 72(b)(2). Where Petitioner fails to file any specific objections, "a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). "Moreover, in the absence of specific objections to the R & R, the Court need not give any explanation for adopting the recommendation." Wilson v. S C Dept of Corr., No. 9:14-CV-4365-RMG, 2015 WL 1124701, at *l (D.S.C. Mar. 12, 2015). See also Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983)). Petitioner did not file objections in this case, and the R & R is reviewed for clear error.

         III. Discussion

         The Magistrate Judge issued an order compelling discovery responses. (Dkt. No. 20.) Further, the Magistrate Judge explicitly warned Plaintiff that failure to respond may lead to dismissal. (Dkt. No. 22.) The Plaintiff failed to respond to either order. Petitioner's lack of response, failure to comply with court orders, and the inability of the Court or Defendant to contact Plaintiff indicates an intent not to prosecute this case and the Complaint is therefore subject to dismissal. See Fed. R. Civ. P. 41(b) (district courts may dismiss an action if a plaintiff fails to comply with an order of the court); see also Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (dismissal appropriate when accompanied by a warning). Dismissal with prejudice is appropriate based on the four-part test in Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982), as Plaintiff is personally responsible for the delay and failure to respond, Defendant is suffering prejudice, the failure to respond has continued now for more than two months, and no sanctions other than dismissal exist as Plaintiff has failed to respond to numerous mailings, emails, text messages and calls. Therefore, the Court adopts the R & R and dismisses the case with prejudice.

         IV. Conclusion

         For the foregoing reasons, the R & R of the Magistrate Judge (Dkt. No. 31) is ADOPTED as the order of the Court, and the Complaint (Dkt. No. 1) is DISMISSED WITH PREJUDICE.

         AND IT IS SO ORDERED.

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Notes:

[1] Though Plaintiff has not updated her address, Plaintiffs former counsel discovered via Westlaw that Plaintiff may have a different (though similar) address to the one provided. (Dkt. No. 30.) However, the address stopped being current in September 2018. (Id.) Regardless, counsel mailed a copy of the status report ...


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