Opinion
5:20-CV-595-FL
10-03-2023
ANGELLA R. NEIL, Plaintiff, v. WARREN COUNTY BOARD OF EDUCATION, Defendant.
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES JR. UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Defendant's motion for sanctions pursuant to Fed.R.Civ.P. 37(d) and 41(b). [DE-160]. Plaintiff filed a response in opposition to the motion. [DE-164], The court held a hearing on the motion on August 30,2023, at which Plaintiff and defense counsel appeared telephonically. [DE-177]. Defendant requests a monetary sanction and dismissal of the case, and therefore, a memorandum and recommendation to the district court is appropriate given the dispositive nature of the sanction sought. See 28 U.S.C. § 636(b)(1)(B); Local Civ. R. 72.3(c). For the reasons set forth below, it is recommended that the motion for sanctions be allowed and the case be dismissed.
I. Background
This is an employment discrimination case brought by Angella Neil, proceeding pro se, against the Warren County Board of Education. The case is proceeding on Plaintiff's claims for Title VII national origin discrimination and retaliation. Plaintiff, who is Jamaican, was a teacher at Miriam Boyd Elementary School in Warren County during the 2018-19 academic year and claims she was harassed and discriminated against due to her national origin, and when she complained she was retaliated against and her contract was not renewed. The Case Management Order (“CMO”) entered by the court set a discovery deadline of June 5, 2023, and a motions deadline of July 5, 2023.
Defendant served its First Set of Interrogatories and Requests for Production of Documents on December 15, 2022, and ultimately filed a motion to compel related to the discovery requests. [DE-144], The court allowed the motion and ordered Plaintiff to provide supplemental responses by May 23, 2023. [DE-154]. The court also conducted a telephonic status conference on April 26, 2023, at Defendant's request, to address Plaintiff's failure to communicate with defense counsel regarding the scheduling of her deposition. [DE-149, -152]. Plaintiff confirmed receipt of a Notice of Deposition for May 4, 2023, and confirmed her intent to appear provided she was healthy. [DE-156] at 10:11-11:3. Plaintiff did not attend her May 4 deposition and did not provide supplemental discovery responses, and Defendant filed the instant motion for sanctions. [DE-160], On August 30, 2023, the undersigned held a hearing on the motion for sanctions. Plaintiff stated that she did not attend her deposition because she was fearful for her life and believed she was being followed by several people, she has a physical condition that causes excessive bleeding, and she preferred responding to written deposition questions. Regarding the outstanding discovery, Plaintiff stated that she produced documents to Defendant prior to filing the case and in May 2023, and has no additional documents to produce, and she questioned what specifically Defendant contends is outstanding. Defendant's counsel stated that all discovery requests were outstanding and specifically noted, based on prior statements of Plaintiff, that there are communications between Plaintiff and school employees, audio/visual recordings of students or school employees, and Plaintiff's medical records that are responsive to Defendant's discovery requests but have not been produced. Defendant's counsel also stated that many of the documents Plaintiff previously produced were not responsive to the discovery requests. Defendant requested that if Plaintiff's position is that there are no other responsive documents, she make that representation in writing.
Following the hearing a written order was entered. [DE-178]. Plaintiff was again reminded of her obligation to participate in discovery, including sitting for a deposition and responding to discovery requests and the court's orders. Considering Plaintiff's pro se status, the court allowed Plaintiff a final opportunity to appear for deposition and to comply with the court's order on the prior motion to compel and ordered as follows:
1. Plaintiff and defense counsel shall promptly confer regarding the outstanding discovery in order to determine what if any interrogatory responses and documents remain outstanding. By no later than September 13, 2023, Plaintiff must provide supplemental responses and produce or make available for inspection and copying any outstanding responsive documents. If, after conferring with defense counsel, Plaintiff maintains that there is nothing further to produce, she must make that representation in writing.
2. Plaintiff shall appear for a deposition by no later than September 27, 2023. The parties shall confer regarding a mutually convenient date, and Defendant shall provide Plaintiff with written notice.
3. The parties shall work cooperatively to complete this discovery in a timely manner.
4. The parties shall file a status report by no later than September 29,2023 regarding the status of this discovery, and the court reserves ruling on the motion for sanctions pending consideration of the status report.
The court also cautioned Plaintiff that “ failure to participate in discovery, including failure to appear at her deposition or to comply with this order, will result in a recommendation that her claims be dismissed pursuant to Fed.R.Civ.P. 37(b), (d). ” Id. at 2-3.
Defendant filed a status report on September 20, 2023, stating in relevant part as follows: Defendant's counsel attempted to confer with Plaintiff regarding deposition dates on two occasions but Plaintiff did not respond; Defendant's counsel then noticed Plaintiff's deposition for September 20, 2023 at the offices of Tharrington Smith, L.L.P., 150 Fayetteville St., Raleigh, North Carolina, and served the notice on Plaintiff by mail and email; Plaintiff did not provide supplemental discovery responses, produce or make available for inspection and copying any outstanding responsive documents, or represent in writing that there was nothing further to produce; Plaintiff did not respond to email correspondence from Defendant's counsel regarding her failure to supplement discovery responses; on September 20, the date of Plaintiff's deposition, Plaintiff emailed Defendant's counsel nine minutes before the deposition was to begin and requested a telephonic code or video platform to participate; Defendant's counsel responded that the deposition was noticed to take place in person at the offices of Tharrington Smith, Plaintiff had not previously requested remote participation, and it was not possible at that point, and Plaintiff stated she was willing to participate remotely or answer written deposition questions; and Defendant's counsel received a document titled Plaintiff's Second Response to Court's Order Supplemental Disclosures on September 20, 2023, but the responses were incomplete and referred to previously provided information that was unrelated or unresponsive, Plaintiff provided no additional documents, and Plaintiff failed to represent in writing that there were no further responsive documents. [DE-182], Plaintiff did not submit a status report, and the September 29 deadline to do so has passed.
II. Discussion
Defendant seeks monetary sanctions and dismissal of the amended complaint with prejudice pursuant to Fed.R.Civ.P. 37(d) and 41(b) based on Plaintiff's failure to attend her May 4, 2023 deposition and failure to comply with the court's order to supplement Plaintiff's discovery responses. Def.'s Mem. [DE-161 ] at 2-6. Plaintiff responded that the deposition notice was deficient, she did not participate in her deposition due to medical and safety concerns and requires an unspecified accommodation, she was not given an opportunity to be heard before the court ruled on the motion to compel, and photocopying responsive documents for production to Defendant would create an undue hardship given Plaintiff's unemployment. Pl.'s Resp. [DE-164] at 19-20.
The court may sanction a party who fails to appear for a deposition after being served with proper notice. Fed.R.Civ.P. 37(d)(1)(A)(i). Among the available sanctions is dismissal with prejudice. Fed.R.Civ.P. 37(b)(2)(A)(v). The court may also dismiss an action on a defendant's motion “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order[.]” Fed.R.Civ.P. 41(b). “The legal standard for dismissals under Rule 37 is virtually the same as that for dismissals for failure to prosecute under Rule 41.” Carter v. Univ. of W.Va. Sys., Bd. of Trustees, 23 F.3d 400 (4th Cir. 1994). The court must consider the following four factors before imposing the ultimate sanction of dismissal: “(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.” Id. “While the district court clearly has the authority to dismiss complaints, . . . this authority should be exercised with restraint and ‘[a]gainst the power to prevent delays must be weighed the sound public policy of deciding cases on their merits.'” Id. (citations omitted).
Plaintiff has provided no good reason for failing to attend her deposition. Plaintiff failed to appear for properly noticed depositions on May 4 and September 20. Plaintiff was warned at a discovery conference prior to the May 4 deposition that the failure to participate in discovery is sanctionable conduct that could result in dismissal of her case, Hr'g Tr. [DE-156] at 9:22-10:10, but she failed to appear. Plaintiff did not challenge the sufficiency of the notice, object in substance to the discovery sought, request a continuance of the deposition, or seek a protective order prior to the deposition. See Fed.R.Civ.P. 37(d)(2) (“A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).”). Plaintiff was given another chance to fulfill her discovery obligations by sitting for her deposition and supplementing her discovery responses, and she was warned both at a hearing and in the court's written order that the failure to do so would result in a recommendation that her case be dismissed. [DE-178] at 2-3. However, Plaintiff again failed to appear for deposition on September 20 and failed to supplement her discovery responses in conformity with the court's order.
Plaintiff's conclusory and unsupported after-the-fact assertions that the deposition notice was deficient, that she did not participate in her deposition due to medical and safety concerns, and that she required an unspecified accommodation, Pl.'s Resp. [DE-164] at 19-20, are insufficient to excuse Plaintiff's blatant disregard for her discovery obligations and for the court's orders. See Cunningham v. Wells Fargo & Co., No. 3:19-CV-00528-FDW, 2022 WL 109002, at *3 (W.D. N.C. Jan. 11, 2022) (“The fact that Plaintiff appears pro se does not mitigate the Court's finding of bad faith here, particularly where the Court has explained her obligations in a telephone conference (where she was permitted to make argument and ask questions), an order, and an additional order clarifying the prior order.”). Plaintiff's assertions that Defendant and/or its counsel had her followed and sent her tainted mail that made her ill and caused her to fear for her safety are unsupported and irrational. Thus, Plaintiff bears full responsibility for twice failing to appear for deposition and has demonstrated bad faith through a history of deliberately proceeding in a dilatory fashion. See Stafford v. Bojangles Restaurants, Inc., No. 3:20-CV-266-MOC, 2023 WL 3970137, at *2 (W.D. N.C. June 9, 2023) (dismissing plaintiffs' claims with prejudice for failure to appear for properly noticed depositions after telling defendant they would appear, which evidenced bad faith) (citing Gill v. Coca-Cola Bottling Co. Consolidated,'do. 3:18-cv-681-MOC-DSC, 2021 WL 94479, at* 1 (W.D. N.C. Jan. 11, 2021) (finding bad faith and dismissing plaintiff's claim when he failed to comply with a court order expressly ordering discovery and warning “in bold font that his failure to comply could result in the imposition of sanctions,” including dismissal); Jones v. Applebee's of Va., Inc., No. 7:10-cv-339, 2011 WL 3438402, at *2 (W.D. Va. Aug. 5, 2011) (presuming bad faith and dismissing plaintiff's claims when she missed two depositions without explanation)).
Plaintiff's refusal to adhere to the Federal Rules and the court's orders have prejudiced Defendant by prolonging the resolution of this matter, depriving Defendant of information needed to defend against Plaintiff's claims, and causing Defendant to incur substantial costs of filing motions seeking Plaintiff's compliance, attending hearings regarding the same, and expending resources for two depositions that did not occur. See Newman v. Durham Hous. Auth., No. 1:22-CV-242, 2023 WL 2477514, at *2 (M.D. N.C. Mar. 13, 2023) (plaintiff's failure to participate in discovery prejudiced defendant where defendant bore the expenses associated with a worthless deposition and filing a motion and was deprived of discovery needed to defend the case); Bland v. Booth, No. 7:19-CV-63-BO, 2020 WL 2575556, at *2 (E.D. N.C. May 21, 2020) (finding plaintiff's non-compliance, including failing to attend a deposition, prejudiced defendants where the defendants' lawyers spent a year attempting to conduct discovery with an opposing party who showed little interest in seriously participating in his own case).
Finally, Plaintiff appears to have no means to pay a monetary penalty and appears unwilling to comply with the Federal Rules and the court's orders given that she has ignored all efforts to obtain her deposition and full discovery responses despite the court twice explaining to Plaintiff her obligations during telephone hearings as well as in a written order. Thus, there is no less drastic sanction that would be effective. See Jones v. Campbell Univ., No. 21-1921, 2023 WL 34172, at *1 (4th Cir. Jan. 4, 2023) (“There is a significant need to deter parties from unilaterally deciding not to attend a properly scheduled deposition.”), cert, denied, No. 22-1128, 2023 WL 6377878 (U.S. Oct. 2, 2023). Accordingly, it is recommended that Plaintiff's case be dismissed with prejudice.
III. Conclusion
For the reasons stated above, it is recommended that the motion for sanctions be allowed and the case be dismissed with prejudice.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until October 17, 2023 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b). Any response to objections shall be filed by within 14 days after service of the objections on the responding party.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).