Emmanuel Ogebe v. Dow Jones & Company

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 23, 2023
• Docket: 21-1548
• Status: Unpublished

Opinion

USCA4 Appeal: 21-1548 Doc: 17 Filed: 01/23/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1548

EMMANUEL OGEBE,

Plaintiff - Appellant,

v.

DOW JONES & COMPANY; DREW HINSHAW; JOE PARKINSON; GBENGA AKINGBULE,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, Senior District Judge. (1:19-cv-00426-LO-IDD)

Submitted: December 29, 2022 Decided: January 23, 2023

Before AGEE and THACKER, Circuit Judges, and KEENAN, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Emmanuel Ogebe, Appellant Pro Se. Matthew Edward Kelley, BALLARD SPAHR, LLP, Washington, D.C., for Appellees.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-1548 Doc: 17 Filed: 01/23/2023 Pg: 2 of 3

PER CURIAM:

Emmanuel Ogebe appeals the district court’s orders dismissing his original and

amended complaints and denying his postjudgment motions. Although the district court

cited no authority for its order dismissing Ogebe’s amended complaint, it appears that it

intended to dismiss Ogebe’s action pursuant to Fed. R. Civ. P. 41(b).

A district court has the inherent authority to dismiss an action for a party’s failure

to comply with its orders, and we review a district court’s decision to dismiss for failure to

comply for an abuse of discretion. See Fed. R. Civ. P. 41(b); Attkisson v. Holder, 925 F.3d

606, 620, 625-27 (4th Cir. 2019). “A dismissal with prejudice under Rule 41(b) is a harsh

sanction which should not be invoked lightly in view of the sound public policy of deciding

cases on their merits.” Herbert v. Saffell, 877 F.2d 267, 269 (4th Cir. 1989) (cleaned up).

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 quotation marks omitted).

Although the district court stated in the order denying Ogebe’s postjudgment

motions that it dismissed Ogebe’s amended complaint “in part because [Ogebe] never filed

a response in opposition” to Appellees’ motion to dismiss, the record is silent as to whether

the district court considered the above factors before dismissing the action with prejudice.

Thus, we cannot conduct a meaningful review of the district court’s order.

2 USCA4 Appeal: 21-1548 Doc: 17 Filed: 01/23/2023 Pg: 3 of 3

Accordingly, we vacate the district court’s order dismissing Ogebe’s amended

complaint and remand for further proceedings. We express no opinion as to whether

dismissal with prejudice is appropriate under Rule 41(b), as the district court is in the best

position to make this determination in the first instance. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

VACATED AND REMANDED