Opinion
Case No. 2:18-cv-01031-RMG-MGB
10-21-2019
Willie Frank James, Jr., Plaintiff, v. Southeastern Grocers LLC, Dan Faketty, Jennifer Powers, Defendants.
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se and in forma pauperis, filed this employment action on April 16, 2018, alleging race discrimination at his workplace. (Dkt. No. 1.) On October 2, 2019, Defendant Southeastern Grocers, LLC ("Defendant") filed a Motion to Dismiss "as a sanction against [Plaintiff] for his repeated failure to provide" responses to Defendant's discovery requests and for his repeated failure to comply with the Court's orders. (Dkt. No. 85 at 1.) Defendant asks that the Court dismiss this action with prejudice and impose monetary sanctions against Plaintiff "for its fees and costs incurred in deposing Plaintiff and bringing the instant motion." (Id. at 21.) For the reasons stated below, the undersigned recommends denying the Motion to Dismiss.
BACKGROUND
A. Factual Background
Plaintiff was an employee of Defendant Southeastern Grocers LLC from March 23, 2015, through his termination on May 20, 2016. (Dkt. No. 32 at 1-2.) While employed at Southeastern Grocers, Plaintiff's "responsibilities were to control shrinkage loss or theft in all stores assigned." (Id. at 2.) On February 15, 2016, Plaintiff called Phil Harris ("Harris"), the Human Resources Director, "to report an incident that took place between me and Patrick Johnson regarding his threat to [Plaintiff's] career." (Id.) In response, Harris arranged a meeting with Defendant Jennifer Powers ("Powers"), the Director of Human Resources. (Id.) Plaintiff alleges that he explained to Harris and Powers "all of the circumstances of very inappropriate and derogatory behavior as well as comments about black people and the culture making for a very uncomfortable working environment." (Id. at 2-3.) Plaintiff also explained that "Patrick Johnson had written [him] up on a few occasions as he was constantly regarding [Plaintiff's] incompetence in performing [his] duties." (Id.)
Plaintiff refers to this defendant as Jennifer Powell. However, it appears her name is actually Jennifer Powers, and service was attempted under the latter name. (Dkt. No. 38.)
According to Plaintiff, Powers "denied" Plaintiff "the right . . . to file a grievance against Patrick Johnson after having reported the ongoing issues." (Id. at 4.) Plaintiff "was told [he] should go back and talk to Patrick and see if [he] could work this out." (Id.) Plaintiff alleges that he "did not see where this was going to be a viable solution." (Id.) Plaintiff alleges that he filed the instant action because Powers "did not see fit to investigate or take heed to any of [Plaintiff's] concerns regarding Patrick Johnson's behavior and pattern of threats to [his] career." (Id.) He further alleges that as a result of Powers's actions, Plaintiff "was made subject to several more months of constant threats and verbal racially motivated abuse that created a very hostile work environment." (Id.)
Plaintiff alleges that after his termination, he informed Powers that he had a "2 hour 51 minute and 10 seconds recording between Mr. Johnson and [Plaintiff]" where Johnson said in part that he had lied to the company "about his reasons for terminating" Plaintiff. (Id. at 5.) According to Plaintiff, Powers then called him in for a meeting with her and Dan Faketty, the Vice President of Protection, "to discuss the content of the recording." (Id.) Plaintiff alleges that he asked for a meeting with Faketty and Johnson "to address [his] previous concerns that were ignored by Harris and Powers in order to resolve this egregious act of discrimination and wrongful termination." (Id.) Faketty told him that "would never happen." (Id.)
Plaintiff alleges that he did not forward a copy of the full recording to the company because "there was no consideration for the type of treatment that [he] received from the upper management team, which consisted of" Harris, Powers, and Faketty. (Id.) Plaintiff alleges he later forwarded the company a four minute clip from the recording wherein Johnson discussed "his disdain for his Supervisor and BI-LO as an organization." (Id.) In response, Johnson was terminated, and Plaintiff received an email that the problem was resolved. (Id.) Plaintiff states this was an unsatisfactory result because the company "completely ignored" his complaints about Johnson's attitude and temperament towards Plaintiff, but the company "removed" Johnson after he made comments about white men. (Id.)
Plaintiff brings this action for "wrongful termination due to discrimination" under Title VII of the Civil Rights Act of 1964. (Dkt. No. 1 at 3, 6.) He received his notice of right to sue from the United States Equal Employment Opportunity Commission ("EEOC") on January 16, 2018, (Dkt. No. 1-1), and he filed this action on April 16, 2018. (Dkt. No. 1).
B. Procedural Background
This is the second sanctions motion that Defendant has filed in this case. Defendant previously sought similar sanctions against Plaintiff in a Motion for Sanctions filed June 4, 2019. (Dkt. No. 66.) In the Report and Recommendation ("R&R") related to that Motion, the undersigned detailed at length Plaintiff's failure to properly engage in discovery with Defendant and his failure to comply with the Court's directives, including, inter alia, (1) Plaintiff's repeated failure to respond to Defendant's discovery requests resulting in the filing of numerous Motions to Compel by Defendant and several extensions of the scheduling order; (2) Plaintiff's failure to appear in Court for a status conference; and (3) Plaintiff's failure to communicate with defense counsel about the status of his discovery responses, resulting in the cancellation of his noticed deposition. (Id. at 1-4.) Based on Plaintiff's conduct, the undersigned recommended granting the Motion for Sanctions in part, in that the Court should impose a monetary sanction of $250.00, to be paid by Plaintiff to Defendant. The Court adopted the R&R and advised Plaintiff his case would be dismissed with prejudice if he did not pay the monetary sanction. (Dkt. No. 76.)
Plaintiff ultimately paid the monetary sanction to Defendant. (Dkt. No. 79.) Based on that payment, the Court found Plaintiff had complied with the Court's Sanctions Order and issued a Second Amended Scheduling Order. (Dkt. Nos. 80; 81.) Per the Second Amended Scheduling Order, discovery was due by September 23, 2019, and dispositive motions are due by November 4, 2019. (Dkt. No. 81.) Defendant filed the instant Motion to Dismiss on October 2, 2019. (Dkt. No. 85.) Plaintiff filed a response brief on October 9, 2019, as well as a "Statement of Facts" on October 15, 2019. (Dkt. Nos. 88; 90.) Defendant filed a reply brief on October 16, 2019. (Dkt. No. 89.) The Motion has been fully briefed and is ripe for review.
STANDARDS
Rule 37(b)(2), Fed. R. Civ. P., provides that if a party fails to obey an order to provide or permit discovery, the Court in which the action is pending may make such orders in regard to such failure as are just, including dismissing the action. In addition, Rule 41(b), Fed. R. Civ. P., authorizes the Court to dismiss an action for failure to prosecute or for failure to comply with court orders. "There is no doubt that Federal Courts possess the inherent authority to dismiss a case with prejudice . . ." See Link v. Wabash Railroad Co., 370 U.S. 626, reh'g. denied, 371 U.S. 873 (1962); Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (courts have the authority to dismiss cases under Rules 37 and 41 as part of the courts' "comprehensive arsenal of Federal Rules and statutes to protect themselves from abuse").
Prior to imposing the sanction of dismissal under Rule 37(b), Fed. R. Civ. P., the district court must consider four factors: (1) whether the noncomplying party acted in bad faith; (2) the degree of prejudice suffered by the other party or parties as a result of the failure to comply; (3) the deterrence value of dismissal as a sanction for noncompliance; and (4) the efficacy of a less drastic sanction. Mutual Fed. Sav. & Loan Ass'n v. Richards & Assocs., 872 F.2d 88, 92 (4th Cir.1989). 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. See, e.g., Hathcock v. Navistar Int'l Transp. Corp., 53 F.3d 36, 40 (4th Cir. 1995); Choice Hotels Int'l, Inc. v. Goodwin & Boone, 11 F.3d 469, 473 (4th Cir.1993) (court must give the noncomplying party an "explicit and clear" warning of the consequences of failing to satisfy the court's conditions and orders); Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 953 (4th Cir.1987) (stating that warning was a "salient fact" that distinguished cases in which default judgment was an appropriate sanction for discovery abuse under Rule 37).
Whether to dismiss under Rule 41(b) is also a matter for the Court's discretion; see Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); and the Court of Appeals for the Fourth Circuit has developed a four-prong test to determine whether a Rule 41(b) dismissal is appropriate. The District Court must consider (1) the degree of personal responsibility of the Plaintiff; (2) the amount of prejudice caused the Defendant; (3) the existence of a "drawn-out history of deliberately proceeding in a dilatory fashion"; and (4) the existence of sanctions less drastic than dismissal. Chandler Leasing Corp., 669 F.2d 9 at 920; Tinsley v. Quick & Reilly, Inc., 216 F.R.D. 337, 338 (E.D. Va. 2001); Contreras v. NFN Pettiford, No. 05-cv-3552, 2006 WL 2621866, at *2 (D.S.C. Sept. 11, 2006).
The standards for dismissal under Rule 37(b)(2) and Rule 41(b) are "virtually the same." Cooper v. Spartanburg Sch. Dist. 7, No. 715-cv-03072-JMC-JDA, 2017 WL 9289401, at *4 (D.S.C. Feb. 24, 2017) (quoting Carter v. Univ. of W. Va. Sys., 23 F.3d 400, 1994 WL 192031, at *2 (4th Cir. 1994)), adopted by, 2017 WL 4021084 (D.S.C. Sept. 12, 2017). Accordingly, to determine whether this action should be dismissed for Plaintiff's failure to comply with discovery requests and the Court's orders, the Court must consider (1) whether Plaintiff acted in bad faith; (2) the amount of prejudice Plaintiff's noncompliance caused Defendants; (3) the need for deterrence of the sort of noncompliance exhibited by Plaintiff; (4) the effectiveness of less drastic sanctions; and (5) whether Plaintiff has a history of deliberately proceeding in a dilatory fashion. Id. (citing Mut. Fed. Sav. & Loan Ass'n, 872 F.2d at 92; Chandler Leasing Corp., 669 F.2d at 920).
DISCUSSION
As noted above, the instant Motion to Dismiss asks the Court to dismiss this case with prejudice "as a sanction against [Plaintiff] for his repeated failure to provide" responses to Defendant's discovery requests and for his failure to comply with the Court's orders. (Dkt. No. 85 at 1.) The Motion also asks that the Court impose monetary sanctions against Plaintiff "for its fees and costs incurred in deposing Plaintiff and bringing the instant motion." (Id. at 21.) Defendant has attached to the Motion correspondence between the parties and certain excerpts from Plaintiff's deposition. (Dkt. Nos. 85; 89.) In the Motion, Defendant summarizes how the case proceeded after Plaintiff paid the monetary sanction and a Second Amended Scheduling Order was entered.
Specifically, Defendant states that: (1) Plaintiff provided late, unsworn executed responses to Defendant's First Set of Interrogatories on September 19, 2019; (2) Plaintiff's deposition was taken on September 23, 2019, wherein Plaintiff verified that his responses to the First Set of Interrogatories were true and correct; (3) At Plaintiff's deposition, Plaintiff stated he had "documentation . . . substantiating his claims" and "agreed to provide the documentation to defense counsel's office," yet he never produced the promised documents; and (4) On October 12, 2019, Plaintiff provided documents seemingly in response to Defendant's First Request for Production of Documents, which were past due—"Plaintiff did not provide Defendant with written responses to the First Request for Production of Documents, nor did he identify to which requests the documents were responsive, as required by Rule 34 of the Federal Rules of Civil Procedure." (Dkt. Nos. 85; 89.) Defendant further states that Plaintiff continues to be evasive about receiving Defendant's discovery requests. For example, Defendant notes that although Plaintiff had already provided responses to the First Set of Interrogatories, at the deposition Plaintiff "unbelievably claimed that he never received the First Set of Interrogatories or the First Request for Production of Documents." (Dkt. No. 85 at 8.)
The record shows that Plaintiff has a history of claiming he never received Defendant's discovery requests. Specifically, in response to a Motion to Compel, Plaintiff claimed he never received Defendant's discovery requests that were allegedly sent on January 29, 2019. (Dkt. No. 55.) In that same filing, Plaintiff stated he "has received from the courts all correspondence and notifications and has complied with the courts request for all information to be submitted in the time frame set by the court." (Id.) In an Order on the Motion to Compel, the undersigned noted that Defendant provided proof of proper delivery of the discovery requests, and that the tracking records submitted by Defendant indicated that the discovery requests were delivered to Plaintiff's address that is of record with this Court. The undersigned stated, "It is not clear how Plaintiff could have received 'all correspondence' from the Court, yet somehow did not receive the discovery requests at issue." (Dkt. No. 60.)
Here, Defendant claims that if the Court allows the case to continue, the Court will "have to re-open discovery and again extend the other deadlines in this case." (Dkt. No. 89 at 5.) Defendant claims it would be prejudiced because Defendant would have to re-open Plaintiff's deposition "at a substantial and otherwise unnecessary cost" and "would have to file another motion to compel, as it does not have all of the information it requested from Plaintiff." (Id. at 4-5.)
Plaintiff has responded to the Motion to Dismiss, asserting that he has responded to the discovery requests in a timely manner. (Dkt. No. 88.) More specifically, Plaintiff states that he "completed and submitted" the interrogatories on September 12, 2019, "their deadline." (Id. at 2.) Plaintiff also states,
Plaintiff has also submitted a "Statement of Facts," which merely restates the allegations set forth in the Complaint. (Dkt. No. 90.)
Then in the same day an email was sent requesting more information and documents along with the instructions that include a Thirty Day (30) day from the time of receipt that was on September 12, 2019 @ 5:35pm. . . . This puts us on a time frame of October 12, 2019 as a deadline for completion of this request.(Id.)
Defendant's Motion and the attached correspondence between the parties indicates that Plaintiff misunderstands how deadlines for discovery are set under the Federal Rules of Civil Procedure. Rule 33 of the Federal Rules of Civil Procedure pertains to interrogatories and provides that "The responding party must serve its answers and any objections within 30 days after being served with the interrogatories." Rule 33(b)(2), Fed. R. Civ. P. Similarly, Rule 34 of the Federal Rules of Civil Procedure pertains to requests for document production and provides that "The party to whom the request is directed must respond in writing within 30 days after being served." Rule 34, Fed. R. Civ. P. Based on the record, Plaintiff's responses to Defendant's First Set of Interrogatories and First Request for Production of Documents were originally due by March 4, 2019, and through various motions and extensions, were due by September 4, 2019, at the latest. Plaintiff did not provide his interrogatory responses until September 12, 2019, rendering those responses untimely. On that date, Defendant emailed Plaintiff its receipt of the interrogatory responses and informed Plaintiff, "we still need your responses to the Request for Production, along with the responsive documents." (Dkt. No. 85-12.) Defendant "attached the Request for Production" to the email. (Id.) Contrary to Plaintiff's representation, this was not the first time Defendant had sent Plaintiff the Request for Production. Indeed, as noted above, Plaintiff's responses to the First Request for Production of Documents were past due on September 12, 2019. Thus, Plaintiff's production of documents in response to this discovery request on October 12, 2019 was not timely.
Despite the untimeliness of Plaintiff's discovery responses, the parties have made significant progress in discovery since the Court ordered Plaintiff to pay Defendant monetary sanctions. Based on the parties' briefings, it appears the only issue remaining in discovery is for Plaintiff to fully respond to Defendant's First Request for Production of Documents—more specifically, for Plaintiff to provide a written response to Defendant's First Request for Production of Documents and for Plaintiff to identify to which specific requests the documents he has produced are responsive. While Defendant will likely need to re-open Plaintiff's deposition once Plaintiff has fully responded to these discovery requests, Plaintiff did appear for his noticed deposition on September 23, 2019. Thus, while Plaintiff has a history of proceeding in a dilatory fashion, he is now making significant efforts to move the case forward. In addition to Plaintiff's recent discovery activity, he paid Defendant the substantial sum of $250.00 dollars in order to avoid dismissal of this case.
Based on the foregoing, the undersigned cannot find that Plaintiff's conduct, at this juncture, warrants more monetary sanctions or the dismissal of this case with prejudice under Rule 37(b) or Rule 41(b) of the Federal Rules of Civil Procedure. While the undersigned understands Defendant has incurred and may continue to incur expenses related to the aforementioned discovery issues, the potential prejudice of those expenses does warrant the sanctions Defendant requests at this time. Further, any prejudice caused by the close of the discovery period can be cured by re-opening and extending discovery to allow time for Plaintiff to fully respond to Defendant's First Request for Document Production and to allow for the re-opening of Plaintiff's deposition.
For these reasons, the undersigned recommends that no further sanctions be imposed at this time. However, this does not excuse Plaintiff's past behavior nor exempt Plaintiff from any ramifications future misconduct may cause. Rather, this recommendation is made after careful consideration of the sanctions already imposed, Plaintiff's pro se status, and the significant progress made in discovery. The undersigned recommends the Court extend the discovery period to December 20, 2019 and extend the dispositive motions deadline to January 20, 2019.
While the discovery deadline may be extended, this does not mean Plaintiff can further delay fully responding to Defendant's First Request for Document Production. Plaintiff should immediately work with Defendant to fully produce the documents requested in the discovery request, including those mentioned by Plaintiff in his deposition to the extent they are responsive to a discovery request. In addition, Plaintiff must provide a written response to Defendant's First Request for Document Production and identify to which specific requests the documents he has produced are responsive. The undersigned recommends the Court require Plaintiff to complete these actions within 14 days of the issuance of the Court's order, so that there is time for Defendant to again depose Plaintiff by the expiration of the discovery period. To the extent necessary, the undersigned recommends the Court allow additional time for Plaintiff's deposition under Rule 30(d)(1) of the Federal Rules of Civil Procedure. Rule 30(d)(1), Fed. R. Civ. P. ("The court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent . . . .").
Further excuses by Plaintiff for failing to comply with the Federal Rules of Civil Procedure will not be taken lightly. Plaintiff is warned that if he fails to complete the above-mentioned actions in a timely manner, his case could be dismissed with prejudice.
CONCLUSION
Based on the foregoing, the undersigned recommends that Defendant's Motion to Dismiss (Dkt. No.85) be DENIED. The undersigned further recommends the Court extend the discovery period to December 20, 2019 and extend the dispositive motions deadline to January 20, 2019. Finally, the undersigned recommends the Court require Plaintiff to fully respond to Defendant's First Request for Document Production within 14 days of the issuance of the Court's order.
IT IS SO RECOMMENDED. October 21, 2019
Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
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
Post Office Box 835
Charleston, South Carolina 29402
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).