Asr v. Giftos

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CASE NO. 3:21-CV-00670-FDW-SCR

LEILA NASSER ASR, )

)

Plaintiff, )

)

v. ) ORDER

)

PETER M. GIFTOS, )

NOVANT HEALTH, INC., and )

NOVANT HEALTH EASTOVER )

PEDIATRICS, )

)

Defendants. )

)

THIS MATTER is before the Court on Defendants’ Motion to Dismiss Plaintiff’s

Complaint with prejudice, pursuant to Federal Rule of Civil Procedure 41(b), (Doc. No. 45), and

Plaintiff’s pro se Motion to Change Venue, (Doc. No. 48). Both Motions have been fully briefed,

(Doc. Nos. 46, 48, 49), and are now ripe for review.1 For the reasons discussed below, Defendants’

Motion to Dismiss, (Doc. No. 45), is GRANTED, and Plaintiff’s claims against Defendants are

DISMISSED WITH PREJUDICE. Further, Plaintiff’s Motion to Change Venue, (Doc. No. 48),

is DENIED AS MOOT.

I. BACKGROUND

Plaintiff Leila Nasser Asr initiated this action on behalf of herself and her son—a minor—

by filing a Complaint on December 17, 2021. (Doc. No. 1). According to the Complaint, Plaintiff

is a citizen of Iran and a permanent resident of Canada. (Id. at 3). Plaintiff is not a licensed

attorney and is proceeding pro se. (Id. at 5).

1 The Court interprets Plaintiff’s most recent filing, “Response to Document 47,” (Doc. No. 48)—a reference to this

Court’s Roseboro Order, (Doc. No. 47)—as Plaintiff’s Response to Defendants’ Motion to Dismiss.

In the Complaint, Plaintiff appears to assert claims for medical malpractice, healthcare

fraud, breach of fiduciary duties, intentional misrepresentation, and discrimination. (Id. at 6–12).

These claims arise from two separate sets of events: (1) care and treatment that Defendant Dr.

Giftos provided to Plaintiff’s son beginning in 2014, after a preschool teacher allegedly assaulted

the child in Charlotte (the “2014 Alleged Assault”); and (2) testimony that Defendant Dr. Giftos

gave in 2018 for a North Carolina state-court action—initiated by Plaintiff on behalf of her son

and pertaining to the 2014 Alleged Assault—that ended in a settlement agreement (the “2018

Settlement Agreement”). (Id.). Specifically, Plaintiff alleges Defendant Dr. Giftos (1) failed to

provide proper care to Plaintiff’s son after the 2014 Alleged Assault and (2) gave false testimony

prior to the 2018 Settlement Agreement. (Id.).

Since filing the Complaint, Plaintiff has engaged in much contumacious behavior, outlined

in detail in the Discussion below as the Court expounds on its decision to dismiss this case with

prejudice. To briefly summarize, Plaintiff’s recalcitrance includes: (1) filing multiple duplicative,

harassing, abusive, and vexatious motions, which, among other things, make unfounded

accusations that Defendants, Defendants’ counsel, this Court, and this Court’s Judges and staff are

engaged in a conspiracy against Plaintiff;2 (2) failing to comply with the Court’s Order that

2 The following are just a few selections of Plaintiffs numerous unfounded claims:

[T]his court and the fourth circuit (judges and clerks) systematically acted based on racism,

discrimination, hatred, animosity, violence, coercion, duress, intimidation, and threat against

plaintiffs rather than acting based on laws and rules. They used the justice system as a weapon and

violently attacked, threatened, intimidated, terrorized, and coerced plaintiffs and cruelly and

inhumanely tortured, tormented, and harmed plaintiffs for the purpose of satisfying their hatred

against plaintiffs’ race and national origin, Middle East.

These courts . . . conspired with defendants against plaintiffs’ civil rights; . . . procured many orders

based on fraud, coercion, partiality, prejudice, and discrimination against plaintiffs; made false

statement [sic] of material facts and deceived courts and plaintiffs; . . . colluded with defendants and

had secret (ex parte) communications with defendants; . . . aided and abetted with criminal activities

of defendants; aided, abetted, and connived with criminal activities of other judges; are accomplice

and accessory to defendants’ commission of the crimes; . . . acted as a trespasser of the law; . . .

Plaintiff appoint a guardian ad litem for her son, who is a minor, (Doc. No. 28); and (3) failing to

comply with the Court’s Order that Plaintiff file an amended complaint that does not include any

claims raised on behalf of her son, (Doc. No. 42).

Defendants filed the instant Motion to Dismiss and Memorandum in Support on November

16, 2022. (Doc. Nos. 45, 46). In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir.

1975), this Court issued a Roseboro Order advising Plaintiff, who appears pro se, of the burden

she carries in responding to Defendants’ Motion to Dismiss. (Doc. No. 47). Plaintiff then filed

her Pro Se “1) Response to Document 47[,] 2) Motion to Transfer Forum Non Conveniens and

improper venue,” on February 23, 2023, (Doc. No. 48), and Defendants filed their Reply on March

1, 2023, (Doc. No. 49). The Court will first address Defendants’ Motion to Dismiss.

II. STANDARD OF REVIEW

“Federal courts have long recognized their inherent power to sanction litigants for

misbehavior in the judicial process.” White v. Raymark Indus., Inc., 783 F.2d 1175, 1177 (4th

Cir. 1986). Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, “involuntary dismissals

are appropriate when ‘the plaintiff fails to prosecute or to comply with the Federal Rules of Civil

Procedure or a court order.’” Attkisson v. Holder, 925 F.3d 606, 625 (4th Cir. 2019), as

amended (June 10, 2019) (quoting Fed. R. Civ. P. 41(b)) (brackets omitted). Although Rule 41(b)

provides an “explicit basis for this sanction, it is not the source of that inherent power.” Id.

(cleaned up). Rather, this power “derives from ‘the control necessarily vested in courts to manage

their own affairs so as to achieve the orderly and expeditious disposition of cases.’” Id. (quoting

interfered with commerce; harassed and bullied plaintiffs by using the internet; tortured and harmed

plaintiff for being from the Middle East; etc. Please see plaintiffs’ cases in this court, 4th circuit, and

Supreme Court for a detailed explanation.

(Doc. No. 43, pp. 1–3).

Link v. Wabash R. Co., 370 U.S. 626, 630–31 (1962)). “Given the inherent judicial authority to

make such dismissals, a court may, in appropriate circumstances, enter such a dismissal sua sponte,

even absent advance notice of the possibility of dismissal.” Id. (internal quotations omitted).

A dismissal under Rule 41(b) “operates as an adjudication on the merits.” Fed. R. Civ. P.

41(b). In deciding whether a Rule 41(b) dismissal is appropriate, a district court should consider

“(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.” Attkisson, 925 F.3d at 625

(internal quotations omitted). However, these criteria “are not a rigid four-prong test. Rather, the

propriety of a dismissal of the type involved here depends on the particular circumstances of the

case.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989), cert denied, 493 U.S. 1084 (1990).3

“A dismissal with prejudice under Rule 41(b) is a harsh sanction which should not be

invoked lightly. . . .” Herbert v. Saffell, 877 F.2d 267, 269 (4th Cir. 1989) (cleaned up). Therefore,

dismissal pursuant to Rule 41(b) is “generally permitted . . . only in the face of a clear record of

delay or contumacious conduct by the plaintiff.” Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir.

1974) (internal quotations omitted). Such contumacious conduct includes ignoring a court

directive that contained “an explicit warning that . . . dismissal would result from failure to obey.”

Ballard, 882 F.2d at 95. When a party disregards the warning of a district court, that court has

3 In fact, a “district court need not engage in a rigid application of this test . . . when a litigant has ignored an express

warning that failure to comply with an order will result in the dismissal of [her] claim.” Taylor v. Huffman, 120 F.3d

262 (Table) (4th Cir. 1997) (emphasis added) (citing Ballard, 882 F.2d at 95–96). The Court notes that it has provided

ample warning to Plaintiff that failure to comply with this Court’s Orders would result in dismissal of her claim. See,

e.g., (Doc. No. 42, p. 7) (“The Court warns [Plaintiff] for the second time that this Court will strike any additional

duplicative, harassing, abusive, or vexatious filings without further notice and may impose sanctions, including

monetary sanctions and/or a pre-filing injunction.”). Nevertheless, this Court voluntarily chooses to discuss its reasons

for dismissing Plaintiff’s claim.

“little alternative to dismissal. Any other course would [] place[] the credibility of the court in

doubt and invite[] abuse.” Id. at 96.

III. DISCUSSION

In the present case, any action short of dismissal with prejudice would place the credibility

of the Court in doubt and invite additional abuse by Plaintiff. The Court will address each of the

four criteria set forth in Attkisson in turn.

A. Plaintiff’s Responsibility for Conduct

As a pro se litigant without an attorney acting on her behalf, Plaintiff bears sole

responsibility for her actions, and as such, the first Attkisson factor—“the plaintiff’s degree of

personal responsibility”— favors dismissal. See Attkisson, 925 F.3d at 625. While pro se litigants

are entitled to some deference from the courts, Haines v. Kerner, 404 U.S. 519, 521 (1972), they

must still comply with the same time requirements and respect for court orders as litigants

represented by counsel. Ballard, 882 F.2d at 96; see also Traquth v. Zuck, 710 F.2d 90, 95 (2d

Cir. 1983) (noting pro se status does not “exempt a party from compliance with relevant rules of

procedural and substantive law”). Pro se litigants are also subject to the same sanctions as

attorneys. White v. Raymark Indus., Inc., 783 F.2d 1175, 1177 (4th Cir. 1986) (“There is no

distinction between attorney and litigant abuses of the judicial process when applying the inherent

power of the federal courts to penalize those responsible for the wrongful conduct.”).

Here, Plaintiff knew that continuing upon her course of action would lead to consequences,

as the Court specifically made her aware of the possibility of repercussions. The Court twice

warned Plaintiff that she would be subject to sanctions “in the event she continues to engage in a

pattern of filing duplicative, harassing, or abusive filings.” (Doc. No. 28, p. 4); (Doc. No. 42, p.

7). In spite of these warnings, Plaintiff persisted in her contumacious conduct by filing several

additional motions that were similarly duplicative, harassing, and abusive. (See, e.g., Doc. Nos.

33, 36, 38, 43, 44, 48).

Further, Plaintiff also knew that failing to comply with this Court’s Orders to provide

specific filings would similarly have consequences, as the Court specifically warned Plaintiff of

potential penalties. For example, on September 23, 2022 (the “September 2022 Order”), the Court

ordered Plaintiff to file an amended complaint and warned that “failure to file such amended

complaint may lead to dismissal of her claims.” (Doc. No. 42, p. 7). Similarly, after Defendants

filed the present Motion to Dismiss, (Doc. No. 45), the Court warned Plaintiff that “failure to

respond [to the Motion to Dismiss] may result in Defendant being granted the relief it seeks—that

is, dismissal with prejudice of all of Plaintiff’s claims.” (Doc. No. 47, p. 3). Despite these explicit

warnings, to date, Plaintiff has failed to file an amended complaint, and she has likewise failed to

adequately respond to Defendants’ Motion—nor has she shown any effort to mollify her offensive

and harassing conduct, which further supports Defendants’ Motion to Dismiss.

As a pro se litigant, Plaintiff bears full responsibility for her actions. Further, Plaintiff was

fully aware of the consequences of her actions due to the repeated warnings from this Court.

Plaintiff’s full responsibility for her actions and knowledge of the consequences of those actions

thus weigh in favor of this Court’s decision to dismiss with prejudice.

B. Prejudice to Defendants

Defendants have been prejudiced by Plaintiff’s actions, and as such, the second Attkisson

factor also weighs in favor of dismissal. See Attkisson, 925 F.3d at 625. Due to Plaintiff’s

deliberate failure to comply with the Federal Rules of Civil Procedure and the Orders of this Court,

Defendants have incurred unnecessary expenses in responding to multiple frivolous motions,4 and

they have had to contend with amorphous and vexatious accusations of racism, fraud, and

fantastical conspiracies, (see, e.g., Doc. No. 38, p. 2).

Importantly, Plaintiff’s failure to comply with this Court’s Orders has prevented

Defendants from knowing what claims they face. 5 In its September 2022 Order, the Court ordered

Plaintiff to file, within twenty-eight days, an amended complaint that did not contain any claims

brought on behalf of her child. (Doc. No. 42, p. 2). However, to date, Plaintiff has refused to

comply with this Order. As a result, Defendants have remained uninformed of the claims against

them and, as a result, have been unable to mount a defense.

C. Plaintiff’s History of Conduct

Plaintiff has a long history of engaging in vexatious conduct, such that the third Attkisson

factor strongly supports dismissal with prejudice. Further, Plaintiff’s conduct is not limited to the

events following the initiation of the present action; rather, Plaintiff’s behavior is part of a pattern

that precedes this case.

1. Conduct Prior to the Present Case

Plaintiff’s failure to comply with this Court’s Orders is similar to Plaintiff’s conduct in

prior cases. For example, predating this action are five other cases that—like this matter—also

challenge the 2018 Settlement Agreement. In the prior cases, “[a]lthough the district court granted

4 Defendants’ filings include Motions to Dismiss pursuant to Rule 12, Responses and Replies to Plaintiff’s filings,

Answers to Plaintiff’s Complaint, and the present Motion to Dismiss pursuant to Rule 41(b). (Doc. Nos. 7–12, 19–

22, 27, 34–35, 37, 39–40, 45–46, 49).

5 The Court notes that, “under any pleading standard, a complaint must put a defendant on notice as to what he must

defend.” Artrip v. Ball Corp., 735 F. App’x 708, 715 (Fed. Cir. 2018) (internal quotations omitted). Dismissal may

be appropriate if Plaintiff’s complaint “fails to inform Defendants as to what they must defend.” See Realtime Data,

LLC v. Stanley, 721 F. Supp. 2d 538, 543 (E.D. Tex. 2010). Furthermore, dismissal with prejudice pursuant to Rule

41(b) is appropriate when a plaintiff fails to comply with a court order to file an amended complaint. See, e.g., Tall

v. Comm’r of Howard Cnty. Hous. Auth., No. 22-1870, 2023 WL 3581699 (4th Cir. May 22, 2023).

her multiple extensions of time to do so, [Plaintiff] did not respond in the district court to

[Defendants’] motions to dismiss and therefore failed to address their assertions that her

complaints were subject to dismissal.” Asr v. Eady-Williams, No. 20-2236, 2022 WL 998988 *1

(4th Cir. Apr. 4, 2022), cert. denied, 143 S. Ct. 315 (2022). Due to Plaintiff’s persistent failure to

file a response to the defendants’ motions, the Court dismissed the previous cases.6 Similarly,

Plaintiff’s persistent refusal to file an amended complaint in the present case warrants dismissal.7

Moreover, Plaintiff also has a long history of assailing defendants and the Court with

baseless and scurrilous accusations. In Plaintiff’s prior cases, this Court found Plaintiff’s

accusations to be calumnious, and the Fourth Circuit agreed. Asr v. Eady-Williams, No. 20-2236,

2022 WL 998988 (4th Cir. Apr. 4, 2022), cert. denied, 143 S. Ct. 315 (2022) (agreeing with this

Court’s determination that Plaintiff’s argument “that the district court’s orders were the result of

judicial bias . . . is without merit”). In the present case, Plaintiff has similarly assailed Defendants

6 Asr v. Monnett, No. 3:20-CV-139-MOC-DCK, 2020 WL 6365456 (W.D.N.C. Oct. 29, 2020), aff’d as modified sub

nom. Asr v. Eady-Williams, No. 20-2236, 2022 WL 998988 (4th Cir. Apr. 4, 2022) (dismissed pursuant to Rules

12(b)(1) and 12(b)(6), and for Plaintiff’s lack of standing to bring claims on behalf of her son, a minor); Asr v.

Williams, No. 3:20-CV-140-MOC-DCK, 2020 WL 6140449 (W.D.N.C. Oct. 19, 2020), aff’d sub nom. Asr v. Eady-

Williams, No. 20-2236, 2022 WL 998988 (4th Cir. Apr. 4, 2022) (dismissed due to one defendant’s judicial immunity

and the fact that the other defendant is “not a distinct legal entity capable of being sued”); Nasser Asr v. Hansen, No.

3:20-CV-141-MOC-DCK, 2020 WL 6875153 (W.D.N.C. Nov. 23, 2020), aff’d sub nom. Asr v. Eady-Williams, No.

20-2236, 2022 WL 998988 (4th Cir. Apr. 4, 2022) (dismissed due to claims being barred by res judicata and collateral

estoppel; for Plaintiff’s lack of standing to bring claims on behalf of her son, a minor; and for the release of future

claims effected in the 2018 Settlement Agreement); Asr v. Kincaid, No. 3:20-CV-142-MOC-DCK, 2020 WL 6365458

(W.D.N.C. Oct. 29, 2020), aff’d as modified sub nom. Asr v. Eady-Williams, No. 20-2236, 2022 WL 998988 (4th

Cir. Apr. 4, 2022) (dismissed pursuant to Rules 12(b)(1) and 12(b)(6), and for Plaintiff’s lack of standing to bring

claims on behalf of her son, a minor); and Asr v. Giordano, No. 3:20-CV-143-MOC-DCK, 2020 WL 6365457

(W.D.N.C. Oct. 29, 2020), aff’d as modified sub nom. Asr v. Eady-Williams, No. 20-2236, 2022 WL 998988 (4th

Cir. Apr. 4, 2022) (dismissed pursuant to Rules 12(b)(1) and 12(b)(6)).

7 The Court also notes that Plaintiff’s Response to Defendants’ most recent Motion to Dismiss is cursory at best. (See

Doc. No. 48, p. 2 (claiming simply that “Defendants [sic] request to dismiss . . . is unlawful because it has no basis in

law or fact, and claims that this court must dismiss plaintiffs’ case because they failed to comply with this court’s

illegal and void orders.”)). Plaintiff’s response fails to address any of Defendants’ legal arguments and instead merely

restates Plaintiff’s improper Motion to Transfer Venue to a court in Canada, which this Court has twice denied. (Text-

Only Orders entered October 31, 2022, and November 1, 2022). By failing to use her Response filing to contest any

of Defendants’ arguments for dismissal, Plaintiff has “therefore failed to address their assertions that her complaints

[are] subject to dismissal.” See Asr v. Eady-Williams, No. 20-2236 at *1.

and this Court with myriad accusations that they have engaged in a conspiracy to defraud Plaintiff.8

This behavior is nothing new for Plaintiff. Rather, it is just the latest in a long pattern where

Plaintiff has made unfounded and harassing allegations in cases before this Court. Such a strong

pattern of conduct supports this Court’s decision to dismiss with prejudice.

2. Conduct in the Present Case

During the course of the present case, Plaintiff has consistently defied the Federal Rules

of Civil Procedure and the Orders of this Court, which further supports dismissal under Rule 41(b).

In spite of numerous explicit warnings and admonishments from this Court, (see, e.g., Doc. No.

42, pp. 6–7), Plaintiff has repeatedly filed meritless, duplicative, harassing, and abusive motions.

(See, e.g., Doc. Nos. 33, 36, 38, 43, 44, 48). First, in response to Defendants’ initial Motions to

Dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure, (Doc. Nos. 7, 9, 21), Plaintiff

filed Motions for Default, Motions to Strike, and Motions for Sanctions, (Doc. Nos. 14, 15, 23,

24, 25, 26). In these documents, Plaintiff accused Defendants’ counsel of, inter alia, “lying to the

court, deceiving the court, abusing the process, and obstructing justice”; violating the Rules of

Professional Conduct; and engaging in “misuse and abuse [of the] ECF system.” (Doc. No. 24, p.

6). These Motions were meritless, procedurally improper, and duplicative. The Court denied these

8 For example, in Plaintiff’s “Reply to Document 37,” which was Defendants’ Response in Opposition to Plaintiff’s

Motion to Strike Defendants’ earlier Motion to Dismiss, (Docs. Nos. 34–36), Plaintiff states:

Defendants provided and are providing illegal motions and documents which contain nothing but

lies and deceptions; clerks helped defendants to file their illegal documents in ECF, prevented

plaintiffs from filing their documents, forged plaintiffs [sic] documents, and…; Judge Whitney used

defendants’ illegal documents to violate United States constitution, treaties, laws, and rules, deprive

plaintiffs of their fundamentally and constitutionally protected rights, and help defendants to flee

from justice. Clearly, defendants, [Defendants’ counsel], clerks of this court, and Judge Whitney

are in (1) mutual agreement and understanding, (2) knowingly joined and working together with (3)

intent to illegally dismiss plaintiffs’ pleadings and help defendants to flee from justice by jointly

using legal means to accomplish an illegal result.

(Doc. No. 38, p. 2).

Motions on April 12, 2022 (the “April 2022 Order”), (Doc. No. 28), instructed Plaintiff on Rule

11 of the Federal Rules of Civil Procedure, and warned her that “in the event she continues to

engage in a pattern of filing duplicative, harassing, or abusive filings, this Court will strike such

filings without further notice and consider the imposition of sanctions, including a pre-filing

injunction.” (Id. at 4).9

Nevertheless, Plaintiff continued to file meritless, duplicative, harassing, and abusive

motions. In response to Defendant Eastover Pediatrics’ Motion to Dismiss, (Doc. No. 34), Plaintiff

filed (1) a Motion to Strike the Motion to Dismiss, (2) a Motion for Sanctions against Defendants,

(3) a Motion for Entry of Default, and (4) a Motion for Default Judgment,10 (Doc. No. 36). The

Court determined these Motions were “meritless and improper,” and were “littered with

duplicative, improper, and/or unsubstantiated accusations against defense counsel, the Court, and

court staff.” (Doc. No. 42, p. 6). The Court also emphasized that Plaintiff’s Motions for Default

Judgment and Entry of Default were the fifth improper filings of their kind. (Id.). In its September

2022 Order, the Court struck these Motions pursuant to Rule 12(f) of the Federal rules of Civil

Procedure and warned Plaintiff “for the second time that this Court will strike any additional

duplicative, harassing, abusive, or vexatious filings without further notice and may impose

sanctions, including monetary sanctions and/or a pre-filing injunction.” (Id. at 6–7).

In addition, Plaintiff has also refused to comply with this Court’s Orders to file documents

on multiple occasions. In its April 2022 Order, the Court gave Plaintiff twenty-eight days to find

a proper guardian ad litem for her son after denying Plaintiff’s Motion to have herself appointed

9 The Court further warned Plaintiff that Rule 11 allows for other sanctions, including dismissal. (Id. at 5).

10 Plaintiff repeated her unsubstantiated accusations that Defendants’ counsel made false statements to the Court, filed

fraudulent and illegal motions, “conspired with this court’s judges and clerks,” and is motivated by “hatred and

animosity against plaintiffs’ race and national origin.” (Doc. No. 36, pp. 1–6, 10–11, 15). Plaintiff also repeated her

unsubstantiated accusation that “this court’s judges[] [have] animosity against plaintiffs. . . .” (Id. at 7).

as guardian ad litem. (Doc. No. 28). However, rather than comply with this Order, Plaintiff filed

a Motion to Stay the Case, (Doc. No. 30), which this Court promptly denied, (Text-Only Order

entered April 15, 2022). Then, one day before the Court’s deadline for Plaintiff to obtain a

guardian ad litem, Plaintiff filed (1) a Motion to Vacate the Court’s Order establishing the deadline

for Plaintiff to obtain a guardian ad litem, (2) a Motion to Vacate the Court’s Order denying

Plaintiff’s Motion to Stay the Case, (3) a Motion to have the undersigned judicial officer recused

from the case, and (4) a Motion to Admit Evidence. (Doc. No. 33). Once again, Plaintiff’s Motions

made baseless accusations that the Court and its staff are biased against Plaintiff and have

“conspired and colluded” to deprive her of her rights, (id. at 1), and the Court ultimately denied

these Motions, (Doc. No. 42 (finding that these claims relied upon “baseless and conclusory

‘factual’ assertions”)).

Plaintiff did not find a guardian ad litem within the twenty-eight-day period set by the

Court in its April 2022 Order. However, the Court did not impose any consequence for Plaintiff’s

inaction until the September 2022 Order—issued five months later—wherein the Court dismissed

any claims brought on behalf of Plaintiff’s child. (Id. at 2). The Court held such action was

appropriate because Plaintiff had entirely failed to comply with the April 2022 Order. (Id.).

More recently, Plaintiff has failed to comply with the Court’s Order to file an amended

complaint. In its September 2022 Order, the Court gave Plaintiff twenty-eight days to file an

amended complaint removing any claims brought on behalf of her son. (Id.). However, Plaintiff

did not file an amended complaint within this timeframe. Instead, she filed a Motion to Change

Venue to a court in Canada, (Doc. No. 43), which the Court denied. (Text-Only Order entered

October 31, 2022). Plaintiff then filed a Motion for Reconsideration, (Doc. No. 44), which the

Court also denied. (Text-Only Order entered November 1, 2022). Now, Plaintiff has once again

moved to change venue. (Doc. No. 48). However, to date, Plaintiff has yet to file an amended

complaint, and the Court has no reason to believe Plaintiff will do so in the future. To the contrary,

in Plaintiff’s Response to Defendants’ most recent Motion to Dismiss, Plaintiff explicitly stated

she is “not going to respond” to this Court’s Orders, which she claims are “void.” (Doc. No. 48,

p. 3). Further, Plaintiff declared she will not respond to Defendants’ filings, which she claims are

“unlawful.” (Id.).

Finally, Plaintiff’s conduct is willful and deliberate, as demonstrated by such express

refusal to comply with this Court’s Orders, and by her repeated violations of the Federal Rules of

Civil Procedure—all despite numerous warnings and admonishments from this Court. This Court

has twice warned Plaintiff, in no uncertain terms, that she will be subject to sanctions if she fails

to comply with the Federal Rules of Civil Procedure and this Court’s Orders. (Doc. No. 28, pp.

3–5); (Doc. No. 42, pp. 6–7). Nevertheless, she continues to violate them. As such, Plaintiff’s

persistent improper conduct weighs very heavily in favor of dismissal with prejudice.

D. Alternative Sanctions to Dismissal with Prejudice

The Court has already imposed numerous consequences on Plaintiff, but these have had no

effect on Plaintiff’s improper behavior. Plaintiff’s continued violations despite the Court’s

repeated warnings indicate that nothing short of dismissal with prejudice will deter Plaintiff from

continuing to violate the Federal Rules of Civil Procedure and the Orders of this Court.

As outlined above, all warnings and punishments this Court has imposed thus far have

failed to deter Plaintiff from her previous course of unacceptable conduct. (See, e.g., Doc. No. 28;

Doc. Nos. 33, 36, 38, 42; Doc. Nos. 43, 44, 48). Despite this Court’s clear and repeated warnings,

Plaintiff has only continued her pattern of disregard for the Rules of Civil Procedure and the Orders

of the Court, indicating that no sanction short of dismissal with prejudice will deter Plaintiff from

continuing these violations.

In sum, each of the four Attkisson factors weighs in favor of dismissal with prejudice:

(1) Plaintiff bears full personal responsibility for her conduct; (2) this conduct has caused

Defendants significant prejudice; (3) Plaintiff has a very long history of deliberately engaging in

such conduct; and (4) sanctions less drastic than dismissal have not been, and will not be, effective

at deterring Plaintiff's conduct.

When a party disregards the warning of a district court, that court has “little alternative to

dismissal. Any other course would [] place[] the credibility of the court in doubt and invite[]

abuse.” Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989), cert denied, 493 U.S. 1084 (1990).

Plaintiff has disregarded this Court’s warnings and sanctions on multiple occasions. Therefore,

dismissal with prejudice of Plaintiff's claims is appropriate and warranted.

IV. CONCLUSION

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss, (Doc. No. 45), is

GRANTED, and Plaintiff’s Complaint against Defendants, (Doc. No. 1), is DISMISSED WITH

PREJUDICE. Accordingly, Plaintiffs Motion to Change Venue (Doc. No. 48) is DENIED AS

MOOT.

IT IS SO ORDERED.

Signed: June 21, 2023

Frank D. Whitney

United States District Judge * ey

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