United States Ex Rel. Curnin v. Bald Head Island Limited , 381 F. App'x 286 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1931
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: May 13, 2010 Decided: June 4, 2010
Before KING, SHEDD, and DAVIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Francis 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Unpublished opinions are not binding precedent in this circuit.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. §§ 3729-3733(2006). This case was previously remanded to the district
court. Finding that the district court abused its discretion on
remand in dismissing Curnin’s complaint with prejudice, we
vacate the judgment and again remand for further proceedings.
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.” Doyle v. Murray, 938 F.2d
33, 34 (4th Cir. 1991). Because dismissal is a severe sanction,
the district court must exercise this power with restraint,
balancing the need to prevent delays with the sound public
policy of deciding cases on their merits. Dove v. CODESCO, 569
F.2d 807, 810 (4th Cir. 1978). 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
defendant; (3) the presence of a drawn out history of
deliberately proceeding in a dilatory fashion; and (4) the
effectiveness of sanctions less drastic than dismissal.”
2
Hillig v. Comm’r of Internal Revenue, 916 F.2d 171, 174 (4th
Cir. 1990).
On remand, the district court applied the Hillig
factors, as instructed. As the district court noted, Curnin’s
complaint was filed under seal October 7, 2003, in accordance
with 31 U.S.C. § 3730(b)(2) (2006). However, the district court
did not unseal the records and order Curnin to serve the
complaint until February 29, 2008, and initially dismissed
Curnin’s complaint on August 5, 2008. Under 31 U.S.C.
§ 3730(b)(2):
A copy of the complaint and written disclosure of
substantially all material evidence and information
the person possesses shall be served on the Government
pursuant to Rule 4(d)(4) of the Federal Rules of Civil
Procedure. The complaint shall be filed in camera,
shall remain under seal for at least 60 days, and
shall not be served on the defendant until the court
so orders. The Government may elect to intervene and
proceed with the action within 60 days after it
receives both the complaint and the material evidence
and information.
31 U.S.C. § 3730(b)(2) (footnote omitted). If the government
fails to intervene in a timely manner or fails to show good
cause, then the court may unseal the file and allow the relator
to prosecute the action. See United States ex rel. Siller v.
Becton Dickinson & Co., 21 F.3d 1339, 1344 (4th Cir. 1994).
By statute, then, Curnin was not permitted to serve
the defendants with the complaint until February 29, 2008, when
the district court so ordered. Because the district court’s
3
reasoning dismissing the action with prejudice erroneously
attributes to Curnin responsibility for the entirety of the
delay in the case since 2003, when, in fact, Curnin was not
permitted to serve the complaint from 2003 until February 2008,
we find that the court abused its discretion in dismissing this
case. *
We therefore vacate the district court’s order
dismissing Curnin’s action with prejudice and remand this case
to the district court for further proceedings. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
*
Moreover, Curnin was not warned of the consequences of
failing to request a summons and serve the complaint on the
defendants or given the opportunity to respond prior to
dismissal with prejudice.
4