INFORMAL BRIEF

YOUR NAME

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In Pro Per

FOURTH CIRCUIT COURT OF APPEALS

INFORMAL BRIEF

NOW COME ……………, the Plaintiff, and file this Supplementary brief pursuant to the North Carolina Code of Civil Procedure (Code), and for cause would show this Honorable Court as follows:

1. That the Plaintiff was innocently under the impression that she had met all the necessary requirement and all the documents she had filed were properly on record only to be informed that her case was being dismissed for failure of prosecution.
2. The Plaintiff appreciates Rule 1 A of that stipulates;

“A trial court is authorized by Rule 41(b) of the Rules of Civil Procedure to dismiss an action or claim (original, cross-claim, counterclaim, or third-party claim) due to the failure of the claimant to prosecute its case.”

3. However, dismissals “are viewed as the harshest of remedies in a civil case and should not be imposed lightly.” Page v. Mandel, 154 N.C. App. 94, 101, 571 S.E.2d 635, 639 (2002).
4. Moreover, although Rule 41(b) does not itself contain such a requirement, North Carolina appellate cases require a trial court to examine the possibility of lesser sanctions when contemplating dismissal – “the most severe sanction available to the court in a civil case.” Page, 154 N.C. App. at 101, 571 S.E.2d at 639 (citing Goss v. Battle, 111 N.C. App. 173, 176, 432 S.E.2d 156, 158-59 (1993))
5. The preceding consideration requires three-party inquiry which includes whether the plaintiff acted in a manner which deliberately or unreasonably delayed the matter; whether the amount of prejudice, if any, to the defendant; and the reason, if one, exists, that sanctions short of dismissal would not suffice. Wilder v. Wilder, 146 N.C. App. 574, 578, 553 S.E.2d 425, 428 (2001)
6. The Plaintiff avers that the decision to dismiss her case for want of prosecution was harsh and the court ought to have considered lesser sanctions.
7. The Plaintiff also contends that her actions qualify her for the said lesser sanctions since she did not deliberately delay the matter. Accordingly, that the judge issued a vague order on the 7^th of December 2022. Particularly, the order failed to specify the precise Plaintiffs being referred to by name hence the Plaintiff herein was unable to establish with certainty that she was being referred to. That subsequently, the Plaintiff attempted to rectify the defects but was informed that she was past the stipulated timelines.
8. Moreover, the Plaintiff avers that she qualifies for lesser sanctions since she meets the second criterion which is prejudice being occasioned to her. As opposed to the aversion that the Plaintiff did not prosecute her case, the Plaintiff was proscribed from doing so by the judge rejecting the pro se filings owing to technicalities, precisely the issue of an electronic signature.
9. That the Plaintiff would thus like this honorable court to take judicial notice that the Plaintiff is disabled and hence require her auxiliary aid hence the electronic device to communicate effectively. Thus, the failure to afford her the opportunity to do so was unfair, unjust and prejudicial since she was compelled to sign using a wet signature.
10. In the case of Jennifer Rittlermeyer v. University of North Carolina Chapel Hill (2017), the court in defining reasonable accommodation held thus;

“The determination of reasonableness is an objective analysis, not a subjective one dominated by either party’s concerns. In assessing objective reasonableness.”

11. Moreover, according to the ADA Regulations, a public accommodation should furnish disabled people with auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.
12. In light of the preceding, the Plaintiff faults the court for violation of the law and neglecting his needs hence a denial of the necessary reasonable accommodation which was the necessary auxiliary aid to communicate effectively.
13. That this honorable court should appreciate the fact that the Plaintiff consequently filed several motions but were all denied by the judge. The motions included motions for discovery, motions to add evidence and motions to add additional defendants. Accordingly, the element of intentional delay by the Plaintiff has not been satisfied.
14. That this honorable court should also take notice that the Defendants requested extension of time which was granted hence no prejudice occasioned to the Defendants as opposed to the Plaintiff. Furthermore, the trial had not even been set into motion.
15. The Plaintiff also requests this honorable court to note that the judge is biased, unfair and unjust. Some of the high-profile and distinguished defendants defaulted and did not respond to the law suit within the statutory timelines since they had 30 days to respond.
16. Moreover, the Plaintiffs are required to respond to motions to dismiss by the defaulted Plaintiff notwithstanding her co-plaintiffs being dismissed for a lesser oversight.
17. That the bias is demonstrated in the Defendant not getting called out for default yet the Plaintiff herein has been defaulted for the same. Precisely, this case was filed on the 12^th of October 2022 and some Defendants are yet to respond. Also, despite the Plaintiffs entering default entries, the clerk adamantly refused to register a notice of default.
18. Furthermore, the Plaintiff avers that if judge Flanagan was to determine whether the parties were representing themselves, she had competent jurisdiction to call for a hearing to dispense with the matter. The parties in appearance are under self-representation hence those that do not ought to be dismissed. This court should also take note that the Plaintiffs wanted a hearing.
19. The Plaintiff also contends that the judge failed to appreciate Rule 8.01 FCRP 41 that provides that if a civil case has been pending for six (6) months without any action, the Court may order the appropriate party to show cause why its claims should not be dismissed for failure to prosecute. Absent a showing of good cause, the Court may dismiss the claims with or without prejudice.
20. The judge dismissed the Plaintiff’s case without affording her the chance to show cause hence a disregard of the preceding rule.
21. The Plaintiff thus asks thus court to review the judges order for dismissal for want of prosecution since the order was as a result of abuse of judicial discretion.
22. The Plaintiff asks this court to take cognizance of the fact that a decision to deny a Rule 41(b) motion is within the sound discretion of the trial court, and “will be reversed for abuse of discretion only upon a showing that its actions are ‘manifestly unsupported by reason.’” Eakes v. Eakes, 194 N.C. App. 303, 309, 669 S.E.2d 891, 896 (2008) (affirming trial court’s refusal to dismiss claims where the movant showed no prejudice from the claimant’s delays); see also James River Equip., Inc. v. Tharpe’s Excavating, Inc., 179 N.C. App. 336, 347, 634 S.E.2d 548, 556 (2006) (affirming trial court’s denial of motion to dismiss); Melton v. Stamm, 138 N.C. App. 314, 317, 530 S.E.2d 622, 624 (2000) (making clear that the trial court is not required to grant motion); Jones v. Stone, 52 N.C. App. 502, 506, 279 S.E.2d 13, 15 (1981) (same); Deutsch v. Fisher, 39 N.C. App. 304, 250 S.E.2d 304, 308 (1979) (holding that court’s refusal to dismiss was appropriate under the facts)

CONCLUSION

In light of the preceding comprehensive Supplementary Brief, the Plaintiff seeks to following reliefs:

1. The order for Dismissal for Want of Prosecution be reviewed.
2. This honorable court takes notice of the bias and prejudice against the Plaintiff by the judge.
3. The Plaintiff’s case be reinstated.

Dated this …. day of March, 2023

Respectfully submitted,

Plaintiff, in pro per

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