Opinion
5:20-CV-255-FL
03-06-2023
HONG LIU, Plaintiff, v. EATON CORPORATION, Defendant.
MEMORANDUM AND RECOMMENDATION
BRIAN S. MEYERS, UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on the second motion [D.E. 43] by defendant Eaton Corporation (“defendant”) to compel responses to written discovery requests and requests for production of documents from pro se plaintiff Hong Liu (“plaintiff”). In support of its motion, defendant filed a memorandum [D.E. 44] with exhibits [D.E. 43-1 to -3; D.E. 44-1 to -3]. Plaintiff filed a response [D.E. 47] to defendant's motion, which included two exhibits [D.E. 47-1 to -2]. This matter is also before the court on defendant's motion for extension of time to complete discovery and file dispositive motions. [D.E. 45]. For the reasons set forth below, it is recommended that defendant's second motion to compel [D.E. 43] be ALLOWED and plaintiff's complaint [D.E. 1] be DISMISSED WITH PREJUDICE, but that defendant's request for expenses be DENIED. It is further recommended that defendant's motion for extension of time [D.E. 45] be DENIED AS MOOT.
I. BACKGROUND
This court's order [D.E. 41] allowing defendant's first motion to compel included a detailed background of the proceedings leading up to the filing of the first motion to compel. Id. at 1-3. Those facts are incorporated by reference.
Following defendant's first motion to compel [D.E. 34], this court held a hearing on December 28, 2021, in which both parties were heard. Following the hearing, the court entered an order [D.E. 41] on January 13, 2022, granting the first motion to compel, but denying defendant's request for award of expenses. Specifically, the court ordered plaintiff to serve on defendant by January 28, 2022, complete responses to defendant's interrogatories and requests for production of documents. Id. at 6. The court further found that because plaintiff did not respond to defendant's discovery requests in a timely manner, any objection plaintiff may have to the relevance or scope of a request was waived. Id. The court noted that plaintiff could still claim privilege (including work product protection), provided that certain procedures were followed, including service of a duly signed privilege log. Id. at 6-7. The court advised plaintiff that failure to comply with the order by the deadlines provided could subject plaintiff to the imposition of sanctions, including dismissal of his claims with prejudice. Id. at 8.
On January 26, 2022, plaintiff served defendant with his discovery responses. [D.E. 432]. In his responses, plaintiff lodged objections to the large majority of the discovery requests without asserting work product doctrine for any of these objections, and without providing a privilege log in line with the court's instructions. Id. Plaintiff objected to fifteen of the nineteen interrogatories. Id. at 2-8. Several of plaintiff's objections simply state “Object. It's private.” Id. at 2-3. Others additionally or alternatively claim that the request is “out of scope of this case,” “overly broad,” “vague,” or “unduly burdensome with respect to time and scope,” or that it “exceeds the permissible scope of discovery.” Id. at 4-8. Moreover, some of the four responses that did not include objections appear to be fully or partially unresponsive to the questions in the interrogatories. See, e.g., id. at 4-5 (responding to Interrogatory #9, which requests the identification of documents supporting plaintiff's damages claims, with “[Defendant] got [sic] these documents, such as performance review, emails regarding to [sic] [plaintiff's] behavior, and [plaintiff's] job records on [defendant]'s team web site [sic]. [Plaintiff] asked [defendant] to provide such information, but been [sic] refused.”).
Plaintiff also provided objections in thirteen of the twenty-one requests for production of documents, providing similar reasons to those he provided for the interrogatories, e.g., that the requests are “overly broad and unduly burdensome with respect to time and scope,” or “out of scope of this case,” or that “[i]t's private.” Id. at 8-14. While plaintiff provided written responses to the remaining eight requests for production, defendant claims that plaintiff had only produced one single-page document at the time the second motion to compel was filed. [D.E. 44] at 8.
Defendant sent plaintiff a letter on January 28, 2022, outlining the perceived deficiencies with plaintiff's discovery responses. [D.E. 43-3]. Defendant asserts that plaintiff had not responded to defendant's deficiency letter at the time the second motion to compel was filed ([D.E. 43] at 2) and had also not provided the supplemental discovery responses at that time ([D.E. 44] at 4). Plaintiff filed a response to defendant's motion to compel on February 28, 2022, claiming that plaintiff “DID [sic] answer each interrogative via [sic] defendant” and that it is “defendant who rudely objected ALL [sic] of plaintiff's discovery requests.” [D.E. 47] at 1. Plaintiff goes on to argue that he “served all related W2s and 1099s to defendant's attorney” and so he “served the working history related documents.” Id. at 1-2.
While plaintiff's response appears to suggest that plaintiff believes that defendant has not responded to plaintiff's discovery request, no relief is requested from the court, and so this court does not construe this statement as a motion to compel discovery responses by plaintiff.
II. DISCUSSION
A. Applicable Legal Standards
The Federal Rules of Civil Procedure enable parties to obtain information by serving requests for discovery upon each other, including interrogatories and requests for production of documents. See generally Fed.R.Civ.P. 26-37. Rule 26 provides for a broad scope of discovery.
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.Fed. R. Civ. P. 26(b)(1). The rules of discovery, including Rule 26, are to be given broad and liberal construction. Herbert v. Lando, 441 U.S. 153, 177 (1979); Nemecek v. Bd. of Governors, No. 2:98-CV-62-BO, 2000 WL 33672978, at *4 (E.D. N.C. Sept. 27, 2000).
While Rule 26 does not define what is deemed relevant for purposes of the rule, relevance has been “broadly construed to encompass ‘any possibility that the information sought may be relevant to the claim or defense of any party.'” Equal Emp. Opportunity Comm'n v. Sheffield Fin. LLC, No. 1:06CV889, 2007 WL 1726560, at *3 (M.D. N.C. June 13, 2007) (quoting Merrill v. Waffle House, Inc., 227 F.R.D. 467, 473 (N.D. Tex.)); see also Mainstreet Collection, Inc. v. Kirkland's, Inc., 270 F.R.D. 238, 240 (E.D. N.C. 2010) (“During discovery, relevance is broadly construed ‘to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.'” (quoting Oppenheimer Fund., Inc., v. Sanders, 437 U.S. 340, 351 (1978))). The district court has broad discretion in determining relevance for discovery purposes. Watson v. Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir. 1992).
Rule 37 allows for the filing of a motion to compel where a party fails to respond to written discovery requests. Fed.R.Civ.P. 37(a)(3)(B). This rule also allows a party to seek sanctions against a party who fails to obey a discovery order to provide or permit discovery. See Fed.R.Civ.P. 37(b)(2)(A). Sanctions may include “dismissing the action or proceeding in whole or in part” Fed.R.Civ.P. 37(b)(2)(A)(v); see Rabb v. Amatex Corp., 769 F.2d 996, 999-1000 (4th Cir. 1985). There are four factors to be considered by the court in assessing sanctions:
A court should consider four factors to determine whether to impose sanctions under Rule 37. See S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003); Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 348 (4th Cir. 2001) (en banc). A court should consider: “(1) whether the non-complying party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4) whether less drastic sanctions would ... be[ ] effective.” S. States Rack & Fixture, 318 F.3d at 597; see Beach Mart, Inc. v. L&L Wings, Inc., 784 Fed.Appx. 118, 123-24 (4th Cir. 2019) (unpublished); D'Orazio v. OSD Holdings, Inc., No. 5:16-CV-11-D, 2017 WL 888225, at *2 (E.D. N.C. Mar. 6, 2017) (unpublished), adopted by 2017 WL 2537243 (E.D. N.C. June 9, 2017) (unpublished). “Although, some courts require a showing of bad faith before imposing sanctions, the Fourth Circuit requires only a showing of fault, with the degree of fault impacting the severity of sanctions.” Sampson v. City of Cambridge, 251 F.R.D. 172, 179 (D. Md. 2008); see Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). Sanctions such as dismissal and default judgment are appropriate “where the party's noncompliance represents bad faith and callous disregard for the authority of the district court and the Rules” governing discovery. Mut. Fed. Sav. & Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989).Clady v. Stewart, No. 5:21-CV-169-D, 2022 WL 1123791, at *1 (E.D. N.C. Apr. 14, 2022) (alteration in original). “In addition to consideration of the factors above, however, a court must provide a party subject to sanction with a clear and express warning that failure to satisfy certain conditions or abide by the court's order will result in dismissal of the action with prejudice.” Wright v. Thomas, No. 5:14-CV-85-BO, 2016 WL 4490631, at *2 (E.D. N.C. Aug. 24, 2016) (citing Pontoon v. Natl. R.R. Passenger Corp., 194 F.R.D. 521, 524 (M.D. N.C. 1999)).
In D'Orazio v. OSL Holdings, Inc., the court concluded that dismissal of a counterclaim was warranted as a sanction due to the party's failure to provide initial disclosures and discovery responses that the court had ordered. D'Orazio, 2017 WL 2537243, at *2 (E.D. N.C. June 9, 2017) (incorporating by reference the analysis in D'Orazio, 2017 WL 888225, at *2). On the first factor, the court found the defendant's willful refusal to participate in the lawsuit sufficient for a finding of bad faith. See D'Orazio, 2017 WL 888225, at *2. On the second factor, the court found that the absence of defendant's discovery prejudiced plaintiff's ability to pursue the lawsuit. Id. On the third factor, the court noted that the defendant's filing of a counterclaim only to essentially abandon the case was “particularly troubling” conduct, which should be deterred. Id. On the fourth and final factor, the court found that less drastic sanctions were not available in light of defendant's abandonment of the case and refusal to reply to the plaintiff's requests. Id. In that case, upon the defendant's failure to comply with the court's order to produce initial disclosures and discovery responses within the stated deadline, the court dismissed the defendant's counterclaim with prejudice and entered judgment in favor of plaintiff. D'Orazio, 2017 WL 2537243, at *2.
B. Defendant's Motion
In its second motion to compel [D.E. 43] and the supporting memorandum [D.E. 44], defendant contends that plaintiff's responses to its interrogatory and document requests are completely inadequate and fail to comply with this court's order compelling discovery, as well as this court's prohibition of objections based on relevance and scope ([D.E. 44] at 5-7).
Defendant requests that the court dismiss plaintiff's claim with prejudice and award attorney's fees in connection with the filing of the motion to compel. [D.E. 43] at 2. In the alternative, defendant requests that the court issue other sanctions, as appropriate, and order plaintiff to serve full and complete responses to defendant's first set of interrogatories and requests for production of documents. [D.E. 43] at 2-3.
C. Sanctions
Here, in applying the four factors the Fourth Circuit has used to evaluate sanctions claims, plaintiff has demonstrated bad faith by refusing to follow this court's order. See [D.E. 41]. Plaintiff failed to follow the requirements of this court's order by objecting to most of defendant's discovery requests without appropriately claiming privilege or providing a privilege log. See Mut. Fed. Sav. & Loan Ass'n, 872 F.2d at 92 (noting bad faith in connection with “callous disregard for the authority of the district court and the [Federal] Rules [of Civil Procedure]” governing discovery). Plaintiff also failed to meaningfully participate in the discovery process by providing few, if any, actual responses to defendant's written discovery requests and requests for production of documents. See Clady WL 1123791, at *2 (citing D'Orazio, 2017 WL 2537243, at *2) (finding bad faith in light of the party's refusal to participate in her own lawsuit).
On the second factor, plaintiff's failure to respond has prejudiced defendant, as it is unable to prepare defenses and fully investigate allegations made against it. See [D.E. 44] at 8.
On the third factor, this court needs to deter parties from disregarding courts' orders and from repeatedly failing to comply with the requirements of the discovery process under the Federal Rules of Civil Procedure.
On the fourth factor, no less drastic sanctions are appropriate, as this court already issued an order in response to the initial motion to compel that was largely ineffective in leading plaintiff to fulfill his obligations in the discovery process.
Finally, this court has already given plaintiff notice that failure to “fully comply with [the order on the first motion to compel] by the deadlines specified [therein] shall subject him to the imposition of sanctions, which may include dismissal of all of his claims with prejudice.” [D.E. 41] at 8 (emphasis added).
“Dismissal is a drastic sanction, but it is warranted when a party demonstrates ‘bad faith and callous disregard for the authority of the' court and the Federal Rules of Civil Procedure.” Clady WL 1123791, at *2 (quoting Mut. Fed. Sav. & Loan Ass'n, 872 F.2d at 92). This applies here. See, e.g., Wright v. Thomas, No. 5:14-CV-85-BO, 2016 WL 4490631, at *2 (E.D. N.C. Aug. 24, 2016) (unpublished). “Rule 37 sanctions are imposed not only to prevent unfair prejudice to the litigants but also to insure the integrity of the discovery process.” Aztec Steel Co. v. Florida Steel Corp., 691 F.2d 480, 482 (11th Cir. 1982) (per curiam). Plaintiff's “pro se status does not alter this result.” Clady WL 1123791, at *2 (citing Mitchell v. Winston-Salem, No. 1:04CV1103, 2006 WL 889552, at *4 (M.D. N.C. Mar. 29, 2006) (unpublished) (“Following rules and evincing an interest in one's own proceeding do not require special legal training, but rather are universal prerequisites for an orderly judicial system, if not the hallmark of well intending individuals.”)); see also Rabb, 769 F.2d at 999-1000.
For the above reasons, it is RECOMMENDED that defendant's second motion to compel [D.E. 43] be ALLOWED, and plaintiff's complaint be DISMISSED WITH PREJUDICE.
C. Expenses
Defendant asks that the court require plaintiff to pay the reasonable expenses, including attorney's fees, incurred in filing its motion to compel. [D.E. 43] at 2. Rule 37(a)(5)(A) provides that the moving party be awarded expenses when a motion to compel discovery is granted, absent certain specified circumstances. The rule states in relevant part:
If the motion [to compel] is granted-or if the disclosure or requested discovery is provided after the motion was filed-the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.Fed. R. Civ. P. 37(a)(5)(A). Courts have held that an award of reasonable expenses incurred is appropriate where the moving party has acted in good faith, attempted to resolve the matter without court intervention, and the non-moving party has failed to comply with its obligations under the Federal Rules of Civil Procedure. See, e.g., Gardner v. AMF Bowling Ctrs., Inc., 271 F.Supp.2d 732, 733-34 (D. Md. 2003) (holding defendant entitled to discovery sanction and attorney's fees where plaintiff failed to respond to discovery requests by due date, defendant advised plaintiff's counsel in writing that responses were past due, and plaintiff did not respond to defendant's letters or to motion for sanctions).
In this case, plaintiff provided responses to defendant's discovery requests on January 26, 2022, two days before the deadline set by the court. [D.E 43-2]. The court notes defendant's claims that these responses were largely unsatisfactory. See [D.E 44] at 3-4. It appears that plaintiff had also provided one single-page document in response to a request for production at the conclusion of the hearing on the first motion to compel on December 28, 2021. [D.E. 44] at 3. Defendant sent a discovery deficiency letter on January 28, 2022, and provided in its second motion to compel, that it did not receive any response from plaintiff to such letter. [D.E. 44] at 34. Plaintiff filed a response to defendant's second motion to compel, albeit untimely [D.E. 47]; see also Fed.R.Civ.P. 27(a)(3)(A). Based on the circumstances, the court finds that an award of expenses would be unjust. See Fed.R.Civ.P. 37(a)(5)(A)(iii).
The undersigned RECOMMENDS that no award of expenses be made, and that each party shall bear its own expenses incurred on the motion. It is, therefore, RECOMMENDED that defendant's request for attorney's fees and other expenses be DENIED.
III. CONCLUSION
For the reasons stated above, it is RECOMMENDED that defendant's second motion to compel [D.E. 43] be ALLOWED, and plaintiff's complaint be DISMISSED WITH PREJUDICE, but that defendant's request for expenses be DENIED. It is further RECOMMENDED that defendant's motion for extension of time [D.E. 45] to complete discovery and file dispositive motions be DENIED AS MOOT.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the respective parties or, if represented, their counsel. Each party shall have until March 20, 2023 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct 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), E.D. N.C. Any response to objections shall be filed by March 27, 2023.
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).