Carolina Wine Company, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No.5:09-CV-474-BO
DR. EDWARD HORTON,
Appellant,
v.
CAROLINA WINE COMPANY, et aI.,
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ORDER
Appellees. 	)
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This matter is before the Court on Appeal from the Opinion and Order of the Bankruptcy
Court. For the reasons set forth herein, this appeal is DISMISSED for failure to prosecute.
A district court may dismiss for want of prosecution on its own motion. Reizakis v. Loy,
490 F.2d 1132, 1135 (4th Cir. 1974). In determining whether to dismiss a matter for failure to
prosecute, "the power to prevent delays must be weighed the sound public policy of deciding
cases on their merits." Jd. 	First, the Court must weigh the responsibility on the Appellant.
McCargo v. Hedrick, 545 F.2d 393 (4th Cir. 1976). Here, Appellant's counsel withdrew on the
grounds that the Appellant had not contacted his counsel regarding proceeding with the appeal or
paid the costs of appeal. Appellant's counsel certified that a copy of that Motion was served on
the Appellant. In granting counsel's Motion to Withdraw, this Court warned the Appellant that
the matter would be dismissed within 30 days if no brief was filed or cause for the delay was not
shown. Therefore, this Court concludes that a clear record of delay exists and that the Appellant
had ample time and warning to argue his case and avoid dismissal.
Case 5:09-cv-00474-BO Document 13 Filed 07/14/10 Page 1 of 2
Case 09-02275-8-SWH Doc 160 Filed 07/14/10 Entered 03/04/11 16:37:27 Page 1 of 2

Second, the Court must consider the amount of prejudice to the Appellees caused by the
delay. Id. 	In the instant case, the Bankruptcy Court required Appellee RBC Bank to segregate
the wine labeled as Dr. Horton's and segregate the proceeds of the sale of that wine. Therefore,
this Court concludes that the Appellees are prejudiced by the delay in resolution of the
underlying Bankruptcy case and the proper disposition of the funds held pending the outcome of
this appeal.
In sum, in light of the Appellant's record of delay and prejudice to the Appellees, this
matter is hereby DISMISSED for failure to prosecute.
SO ORDERED, this 	(~ day of July, 2010.
;X:~YL~ 	IiryBUNITED STATES DISTRICT JUDGE
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Case 5:09-cv-00474-BO Document 13 Filed 07/14/10 Page 2 of 2
Case 09-02275-8-SWH Doc 160 Filed 07/14/10 Entered 03/04/11 16:37:27 Page 2 of 2