                            UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.”



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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

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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.



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