                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-2012


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:    March 26, 2009                 Decided:   May 21, 2009


Before MICHAEL, KING, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Frank 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Unpublished opinions are not binding precedent in this circuit.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).     Although the district court cited no authority for its

order, it appears that it intended to dismiss Curnin’s action

pursuant to Fed. R. Civ. P. 41(b).

            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) (citing Reizakis v. Loy, 490 F.2d

1132, 1135 (4th Cir. 1974)).              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

      *
       Because the district court did not specify whether the
dismissal was without prejudice, and because the dismissal was
not based upon lack of jurisdiction, improper venue, or failure
to join a party, the dismissal is with prejudice. Fed. R. Civ.
P. 41(b).



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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.”

Hillig v. Comm’r of Internal Revenue, 916 F.2d 171, 174 (4th

Cir. 1990).

            Although the district court stated that it dismissed

Curnin’s action for failure to request issuance of summons or to

serve the Defendants within a reasonable amount of time, the

record is silent as to whether the district court considered the

above factors in dismissing the action with prejudice.                                  Thus, we

have no basis for assessing the district court’s ruling.

            Accordingly, we vacate the dismissal.                              We remand so

that,   assuming      the       district       court      intended       to    exercise        its

authority under Rule 41(b), the court may apply the appropriate

four-part     analysis           in   determining             whether     dismissal           with

prejudice    is   appropriate.             If       the   court   intended         to    dismiss

Curnin’s    action    on        another    ground,        we    direct    that       the   court

clarify its reasoning.                We express no opinion as to whether

dismissal with prejudice is appropriate under any analysis, as

the   district     court         is   in   the       best      position       to    make      this

determination in the first instance.                      We deny Curnin’s motion to

seal as moot.        We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials



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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                      VACATED AND REMANDED




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