Opinion
Civil Action 6:23-cv-3511-TMC-KFM
03-15-2024
Jenene Mayes, Plaintiff, v. Kyocera AVX Components Greenville, LLC; Stacy Eldridge; Melissa King; Genevieve Delfin; Joshua Lindsey; and Joe Dwars, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the defendants' motion to dismiss as sanctions for the plaintiff's failure to cooperate in discovery (doc. 42). Under the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases involving pro se litigants and submit findings and recommendations to the district court.
PROCEDURAL HISTORY
The plaintiff, who is proceeding pro se, filed her complaint in state court on June 14, 2023, alleging claims for violation of Title VII of the Civil Rights Act of 1964, as amended, and the Americans with Disabilities Act (doc. 1-1). The defendants removed the matter to this court on July 20, 2023, on the basis of federal question jurisdiction (doc. 1), and they filed their answer on July 21, 2023 (doc. 9).
In an order filed July 26, 2023, the undersigned ordered the plaintiff to answer Local Civil Rule 26.01 interrogatories and to always keep the Clerk of Court advised in writing of any address changes (doc. 13). The plaintiff was specifically warned that if she failed to meet a deadline because of her failure to keep her address updated, her case could be dismissed for failing to comply with the order (id.). That order was returned to the Clerk of Court on August 10, 2023, marked “Return to Sender, Attempted - Not Known, Unable to Forward,” despite being mailed to the address provided by the plaintiff on her state court complaint (doc. 17). On August 21, 2023, the undersigned issued a second order directing the plaintiff to answer the interrogatories and to keep her address updated with the Clerk of Court (doc. 23). On August 21,2023, the plaintiff filed an affidavit verifying her mailing address as 330 East Coffee Street, Greenville, South Carolina 29601 (doc. 26). On August 28, 2023, the August 21st order that had been mailed to the plaintiff at her address of record was also returned to the Clerk of Court marked “Return to Sender, Attempted - Not Known, Unable to Forward” (doc. 27). The plaintiff filed her answers to the Local Civil Rule 26.01 interrogatories on August 30, 2023 (doc. 28).
On September 28, 2023, the defendants filed a “notice of unsuccessful attempts to serve pleadings on pro se plaintiff” with attachments showing envelopes stamped “Not Deliverable,” despite using the address contained in the plaintiff's affidavit (doc. 32).
The defendants served the plaintiff with written discovery on October 16, 2023, using the plaintiff's address of record (doc. 38-1). The defendants state that the discovery was not returned as undeliverable (doc. 42 at 2). The defendants also served the discovery to the email address provided by the plaintiff (doc. 38-1).The plaintiff's responses were due by November 20, 2023, with an allowance of an additional three days for mailing (doc. 42 at 2). See Fed.R.Civ.P. 6(d). When the plaintiff did not timely respond to the discovery requests, defense counsel sent a letter on December 8, 2023, to the plaintiff informing her that if she did not respond to the discovery by December 15, 2023, the defendants would file a motion to compel (doc. 38-2). Defense counsel also sent the letter to the email address provided by the plaintiff (id.). Defense counsel received no response. Accordingly, defense counsel states that he called the telephone number on the face of the plaintiff's complaint, which was answered by one Chris Jones (doc. 42 at 3). Upon being told that the caller was an attorney involved in litigation with the plaintiff and that the attorney was trying to get in touch with the plaintiff, Mr. Jones noted that the telephone number was for an office he previously shared with the plaintiff (id.). Mr. Jones indicated he would pass the message to the plaintiff that defense counsel was trying to get in touch with her (id.).
On December 21,2023, the defendants filed a motion to compel the plaintiff to respond to their discovery requests (doc. 38). The plaintiff's response to the motion, allowing an additional three days as she was served by mail, was due by January 8, 2024. See Fed.R.Civ.P. 6(a)(1), (d). The plaintiff failed to file any response to the motion to compel. On January 16, 2024, the undersigned granted the motion to compel, ordering the plaintiff to provide the defendants with responses to their discovery requests on or before January 30, 2024 (doc. 40). The plaintiff was specifically warned that failure to provide the discovery responses as ordered could subject the plaintiff to sanctions including dismissal of this action (id. at 2). See Fed.R.Civ.P. 37(b)(2)(A) (listing possible sanctions for failing to obey a discovery order).
On February 5, 2024, the defendants filed the motion to dismiss for failure to cooperate in discovery that is now before the court for consideration (doc. 42). The defendants state that, as of the date of the filing of the motion, the plaintiff has not provided responses to the defendants' discovery requests as this court ordered (id. at 3). By order filed February 7, 2024, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if she failed to respond adequately to the defendants' motion (doc. 43). The plaintiff has not filed a response to the motion to dismiss.
On February 23, 2024, the Roseboro order, which was mailed to the plaintiff's address of record, was returned to the Clerk of Court marked “Return to Sender, Not Deliverable as Addressed, Unable to Forward” (doc. 45). On February 26, 2024, the order ruling on the defendants' motion to compel, which was also mailed to the plaintiff's address of record, was returned to the Clerk of Court marked the same (doc. 46).
APPLICABLE LAW AND ANALYSIS
The defendants move pursuant to Federal Rule of Civil Procedure 37 for an order dismissing this action with prejudice as sanctions for the plaintiff's failure to cooperate in discovery (doc. 42 at 3-5). Rule 37(b)(2)(A) provides that sanctions for failure to obey an order to provide or permit discovery may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.Fed. R. Civ. P. 37(b)(2)(A) (emphasis added). Rule 37(d) provides that a party's failure, after being served with proper notice, to attend her own deposition or answer discovery may be sanctioned by the court as provided in Rule 37(b)(2)(A). Id. 37(d)(3). Similarly, Rule 41(b) provides that a complaint may be dismissed for failure to prosecute and/or failure to comply with orders of the court. Id. 41(b). See Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989) (upholding dismissal of pro se plaintiff's claims and noting that pro se litigants, like other litigants, “are subject to the time requirements and respect for court orders without which effective judicial administration would be impossible”).
A court should consider the following factors in determining what sanctions to impose under Rule 37:
(1) whether the non-complying party acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary,
which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions.Mut. Fed. Sav. and Loan Ass'n v. Richards & Assocs. Inc., 872 F.2d 88, 92 (4th Cir. 1989).To warrant dismissal, the offending party's conduct in the litigation must demonstrate a “pattern of indifference and disrespect to the authority of the court.” Id. at 93. The Court of Appeals for the Fourth Circuit has emphasized the importance of warning the offending party of what may follow prior to dismissing the action for failure to comply with discovery obligations. Hathcock v. Navistar Int'l Transp. Corp., 53 F.3d 36, 40 (4th Cir. 1995). A trial court has broad discretion in applying sanctions under Rule 37. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976). “District courts enjoy nearly unfettered discretion to control the timing and scope of discovery and impose sanctions for failures to comply with its discovery orders.” Hinkle v. City of Clarksville, West Virginia, 81 F.3d 416, 426 (4th Cir. 1996) (citation omitted).
In considering whether to dismiss an action pursuant to Rule 41(b) for failure to prosecute or comply with orders of the court, the court is required to consider four factors: (1) the degree of plaintiff's responsibility in failing to respond; (2) the amount of prejudice to the defendant; (3) the history of the plaintiff in proceeding in a dilatory manner; and (4) the existence of less drastic sanctions other than dismissal. Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978) (citation omitted). “Courts have held that because the standard for dismissals under [Rule 37] is virtually identical to that for dismissal for failure to prosecute under [Rule 41], the [c]ourt can combine its analysis of the question whether dismissal is appropriate under both Rules.” Woods v. Wells Fargo Bank, N.A., C. A. No. 3:10-cv-3160-SVH, 2012 WL 601872, at *3 (D.S.C. Feb. 23, 2012) (citation and internal quotation marks omitted).
The undersigned agrees with the defendants that dismissal with prejudice is the appropriate sanction in this case. The plaintiff has shown a pattern of indifference and disrespect for orders of the court and the Federal Rules on Civil Procedure. The plaintiff appears pro se in this case and is therefore entirely responsible for her actions. She failed to provide timely responses to the defendants' discovery requests and did not file a response to the defendants' motion to compel discovery. The plaintiff disregarded this court's January 16th order to provide the defendants with responses to the discovery requests by January 30, 2024, despite being specifically warned that failure to provide the discovery responses as ordered could subject the plaintiff to sanctions including dismissal of this action (doc. 40). Moreover, the plaintiff made no effort to contact defense counsel to discuss the discovery. Further, the plaintiff failed to file any response to the defendants' motion to dismiss this action, despite again being advised in the Roseboro order that if she failed to timely file a properly supported response, the defendants' motion may be granted, thereby ending her case (doc. 43). In addition, despite being repeatedly warned that she must keep her address updated with the Clerk of Court and the possible ramifications of failing to do so (docs. 13, 23), the Clerk of Court's mailings to the plaintiff continue to be returned as undeliverable (see docs. 45, 46).
The plaintiff's conduct prejudices the defendants' ability to investigate the case and prepare for dispositive motions and trial. The need for deterrence of this level of non-compliance is high, as the plaintiff has wasted the time of the defendants, defense counsel, and the court in her failure to comply with discovery. Finally, less drastic sanctions are not available, as defense counsel has tried different methods of correspondence (including by email and telephone) with the plaintiff and the court has issued various warnings to the plaintiff, and she continues to ignore her obligations under the Federal Rules of Civil Procedure. Given the plaintiff's lack of compliance, there is no reason to believe she would comply with less drastic sanctions, such as directing her to pay the defendants' costs and attorney's fees associated with attempting to obtain the discovery from her. The plaintiff has previously been warned that she could be sanctioned by dismissal of her case, and she nevertheless failed to comply with the court's directives. The plaintiff has had ample opportunity to correct her behavior and preserve her right to bring suit. Indeed, this court has recognized that even with a pro se plaintiff, dismissal can be an appropriate sanction for failure to cooperate in discovery. See Brown v. Armstead, C. A. No. 9:22-cv-1017-RMG-MHC, 2023 WL 3212565, at *3 (D.S.C. Apr. 6, 2023) (recommending dismissal of pro se plaintiff's case pursuant to Rule 41(b) based on her failure to comply with the court's discovery order and Roseboro order and failure to otherwise respond to the motion to dismiss after being warned that such failure could result in dismissal), R&R adopted by 2023 WL 3203910 (D.S.C. May 2, 2023); Tucker v. Reddy Ice Corp., C. A. No. 2:22-cv-240-RMG-MHC, 2022 WL 4125649, at *2 (D.S.C. Aug. 9, 2022) (recommending pro se plaintiff's case be dismissed pursuant to Rule 37(b)(2)(A) or Rule 41(b) for failure to prosecute), R&R adopted by 2022 WL 3754733 (D.S.C. Aug. 30, 2022); James v. Nielsen Media Research, C. A. No. 6:15-cv-3052-TMC-KFM, 2016 WL 3456937, at *3 (D.S.C. Apr. 28, 2016) (recommending case be dismissed pursuant to Rules 37(d) and 41(b) based on pro se plaintiff's failure to attend his own deposition, failure to participate in discovery, failure to respond to the defendants' motion for sanctions, and overall failure to prosecute), R&R adopted by 2016 WL 3364901 (D.S.C. June 17, 2016); Tolbert v. Charter Commc'n, C. A. No. 6:10-2618-TMC-JDA, 2012 WL 1340120, at *5 (D.S.C. March 22, 2012) (recommending dismissal of case with prejudice pursuant to Rules 37(b) and 41(b) based on pro se plaintiff's “continuous and flagrant disregard of discovery requests and the authority of this [c]ourt”), R&R adopted by 2012 WL 1340364 (D.S.C. April 18, 2012).
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the defendants' motion to dismiss with prejudice as sanctions for the plaintiff's failure to cooperate in discovery (doc. 42) should be granted.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Suite 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).