United States ex rel. Peter C. v. Bald Head Island Limited, No. 08-2012 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2012 UNITED STATES OF AMERICA ex rel. PETER C. CURNIN, Plaintiff - Appellant, v. BALD HEAD ISLAND LIMITED, a Texas limited partnership; MARK D. MITCHELL, general partner; MICHAEL K. MITCHELL, general partner, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:03-cv-00174-F) Submitted: March 26, 2009 Decided: May 21, 2009 Before MICHAEL, KING, and SHEDD, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Frank X. Moore, FRANK X. MOORE & ASSOCIATES, Atlanta, Georgia, for Appellant. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Peter C. Curnin appeals the district court s order dismissing with prejudice, * for failure to prosecute, his action brought on behalf of the United States under the qui tam provisions of the civil False Claims Act, 31 U.S.C. ยงยง 3729-3733 (2006). Although the district court cited no authority for its order, it appears that it intended to dismiss Curnin s action pursuant to Fed. R. Civ. P. 41(b). A district court has the inherent authority to dismiss a case for failure to prosecute, and Rule 41(b) provides an explicit basis for this sanction. 33, 34 (4th Cir. 1991). the district balancing the court need Because dismissal is a severe sanction, must to Doyle v. Murray, 938 F.2d exercise prevent this delays power with policy of deciding cases on their merits. with the restraint, sound public Dove v. CODESCO, 569 F.2d 807, 810 (4th Cir. 1978) (citing Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir. 1974)). This Circuit therefore requires a trial court to consider four factors before dismissing a case for failure to prosecute: (1) the plaintiff s degree of personal responsibility; (2) the amount of prejudice caused the * Because the district court did not specify whether the dismissal was without prejudice, and because the dismissal was not based upon lack of jurisdiction, improper venue, or failure to join a party, the dismissal is with prejudice. Fed. R. Civ. P. 41(b). 2 defendant; (3) deliberately the presence proceeding in effectiveness of of sanctions a a drawn dilatory less out fashion; drastic history and than (4) of the dismissal. Hillig v. Comm r of Internal Revenue, 916 F.2d 171, 174 (4th Cir. 1990). Although the district court stated that it dismissed Curnin s action for failure to request issuance of summons or to serve the Defendants within a reasonable amount of time, the record is silent as to whether the district court considered the above factors in dismissing the action with prejudice. Thus, we have no basis for assessing the district court s ruling. Accordingly, we vacate the dismissal. that, assuming the district court intended We remand so to exercise its authority under Rule 41(b), the court may apply the appropriate four-part prejudice Curnin s analysis is in determining appropriate. action on If another clarify its reasoning. the ground, whether court we dismissal intended direct that to with dismiss the court We express no opinion as to whether dismissal with prejudice is appropriate under any analysis, as the district court is in the best determination in the first instance. seal as moot. position to make this We deny Curnin s motion to We dispense with oral argument because the facts and legal contentions are adequately presented in the materials 3 before the court and argument would not aid the decisional process. VACATED AND REMANDED 4

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