United States District Court, E.D. Virginia, Newport News Division
KRISTINA L. MORTENSEN Plaintiff,
SEAWORLD PARKS & ENTERTAINMENT LLC Defendant.
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON, UNITED STATES DISTRICT JUDGE
matter currently before the Court is SeaWorld Parks &
Entertainment LLC's ("Defendant") Motion to
Dismiss and the accompanying Memorandum in Support. ECF No.
13 & 14. For the reasons set forth below, the Motion is
FACTUAL AND PROCEDURAL HISTORY
April 18, 2019, Kristina L. Mortensen's
("Plaintiff") action was properly removed by
Defendant and assigned to this Court. On May 2, 2019, the
Magistrate Judge issued a Pretrial Order, pursuant to
Fed.R.Civ.P. 26(f), which ordered a conference between the
parties and a Scheduling Conference consistent with
Fed.R.Civ.P. 16(b). ECF No. 8. On May 22, 2019, this Court
issued a Scheduling Order, pursuant to Fed.R.Civ.P. 16(b).
ECF No. 9. The scheduling order provided that Plaintiffs
discovery obligations were to be completed by August 28,
sent its first set of interrogatories and requests for
production to Plaintiffs counsel on May 15, 2019. ECF No.
14-A. Plaintiffs counsel spoke with Plaintiff on May 21, 2019
and advised them that she had completed her responses to the
Defendant's interrogatories, which were due back to
Defendant on June 17, 2019. ECF No. 11. However, Plaintiff
never responded to her counsel with her responses to
Defendant's interrogatories, despite her counsel's
attempts to reach her on May 23, May 31, June 1, June 4, June
5, and June 10 of 2019. Id. On June 19, 2019,
Plaintiffs counsel moved to withdraw pursuant to Fed.R.Civ.P.
83.1(c)(5). ECF No. 10. In moving to withdraw, Plaintiffs
counsel represents to this Court that Plaintiff has not
responded to their attempts to communicate with Plaintiff
since their conversation regarding Defendant's
interrogatories on May 21, 2019. ECF No. 11. After receiving
no responses to any of its discovery requests, Defendant
filed its Motion to Dismiss on August 6, 2019. ECF No. 13.
41(b), the relevant provision of the Federal Rules of Civil
Procedure for this matter, dictates that:
If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the
action or any claim against it. Unless the dismissal order
states otherwise, a dismissal under this subdivision (b) and
any dismissal not under this rule-except one for lack of
jurisdiction, improper venue, or failure to join a party
under Rule 19-operates as an adjudication on the merits.
United States Court of Appeals for the Fourth Circuit
("Fourth Circuit") holds, "[t]he district
court had authority under Rule 41(b) to dismiss the case with
prejudice, on its own motion, for failure to prosecute."
Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978)
(citations omitted). However, "[a] dismissal with
prejudice is a harsh sanction which should not be invoked
lightly in view of 'the sound public policy of deciding
cases on their merits.'" Id. With this in
mind, the Fourth Circuit has set out a series of factors to
govern a district court decision making under Rule 41(b):
[T]he district court must balance considerations of sound
judicial administration, applying four criteria: (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. As such, this Court must apply the factors in
Davis v. Williams (the "Davis Factors") to
determine whether dismissing the Plaintiffs suit with
prejudice is warranted under the circumstances.
respect to Factor One, it is clear that Plaintiff is
responsible for her failure to prosecute her case before the
Court. Plaintiff has failed to respond to any discovery
requests in violation of the Court's orders. In addition,
the Plaintiff has failed to communicate with her counsel
since May 21, 2019, despite their repeated efforts to assist
her with discovery. ECF No. 11. Before seeking to withdraw
from representing Plaintiff, Plaintiffs counsel attempted to
reach her through multiple channels, including certified mail
verifying her receipt of their overtures. Id.
Plaintiffs conduct indicates she seeks to simply remove
herself from the case and does not wish to be burdened by
discovery, an essential duty and responsibility of a
plaintiff in both civil and criminal cases. See Shabazz
v. PYA Monarch, LLC, 271 F.Supp.2d 797, 801 (E.D. Va.
2003) ("Furthermore, plaintiff has offered no reason for
failing to comply with the Federal Rules of Civil Procedure
and Local Rules in other aspects of the case thus far, such
as filing memoranda of law with his motions and responding to
discovery requests on time. The plaintiffs failure to comply
with these rules is completely inexcusable.").
Therefore, the Court concludes this factor weighs heavily in
favor of the Defendant's Motion to Dismiss.
respect to Factor Two, while the Court recognizes that
discovery burdens are a normal aspect of a lawsuit in federal
court, the Plaintiffs complete failure to participate in the
discovery process has created substantial prejudice to the
Defendant. The Court's May 22, 2019 Scheduling Order
provided that Plaintiffs responses to Defendant's
interrogatories, requests for production, and requests for
admission were to be completed by August 28, 2019. ECF No. 9.
At the end of the Plaintiffs period to fulfill her discovery
obligations prescribed by this Court, Defendant is left only
with legal objections from Plaintiffs counsel to their
interrogatories and no further discovery information. ECF No.
14-2. The Plaintiff s unwillingness to participate in