Opinion
C. A. 22-1697-MGL-SVH
08-16-2023
Rose B. Moumouni, Plaintiff, v. Chester County School District, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
In this employment case, an employee alleges she was discriminated against, sexually harassed, and retaliated against, resulting in her termination. Her former employer moves for dismissal, arguing she failed to participate in discovery in this case.
Rose B. Moumouni (“Plaintiff”) originally filed this suit on May 31, 2022, against her former employer Chester County School District (“Defendant”). Plaintiff brings claims against Defendant for discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681, et seq. [See ECF No. 14 (operative complaint), see also ECF No. 43 at 1 n.1]
This matter comes before the court on Defendant's motion to dismiss and for discovery sanctions brought pursuant to Fed.R.Civ.P. 37 and 41(b). [ECF No. 90]. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). For the following reasons, the undersigned recommends the district judge deny Defendant's motion.
I. Background
On November 8, 2022, the court issued a scheduling order specifying that “[d]iscovery may begin upon receipt of this order.” [ECF No. 57]. It provided for “[d]iscovery [to] be completed no later than March 8, 2023” and “[a]ll other motions . . . [to] be filed on or before April 7, 2023.” Id.
On December 12, 2022, Defendant served Plaintiff with its first set of interrogatories (“interrogatories”) and requests for production (“discovery requests”). [ECF No. 90-1]. On January 19, 2023, Plaintiff responded only to the interrogatories, but her responses were insufficient, later found by the court as effectually non-responsive. [ECF No. 75 at 15]. Plaintiff failed to submit any responses to the requests for production.
On February 9, 2023, Defendant served Plaintiff with a notice of deposition set for February 28, 2023. [ECF No. 90-2]. Defendant sought, and the court granted, a sixty-day extension to complete discovery after Plaintiff informed Defendant that she would not attend the deposition and would require three weeks' notice before “agreeing” to a deposition. [ECF Nos. 64, 67].
On March 6, 2023, Defendant served Plaintiff with an amended notice of deposition to appear on March 29, 2023. [ECF No. 90-3]. Defendant represents that one week before the second attempt for Plaintiff to sit for a deposition, Plaintiff called Defendant's counsel to inform him that she would not attend the deposition based on the advice of legal counsel. [ECF No. 90 at 3-4]. On March 23, 2023, Defendant's counsel sent Plaintiff a letter warning her of the consequences in the case if she did not appear without a justifiable excuse. [ECF No. 90-4].
On March 28, 2023, the day before her second scheduled deposition, Defendant represents that Plaintiff again contacted Defendant's counsel, stating she refused to attend the deposition because she would be “trapped” or “abused” if she appeared. [ECF No. 90 at 4]. Defendant's counsel informed Plaintiff the deposition would be conducted as scheduled, also sending Plaintiff a letter via email, preserving the date of the deposition and stating as follows: “if you do not appear for your deposition . . . the District will move to dismiss your lawsuit pursuant to Federal Rule of Civil Procedure, Rule 41(b) ....”. [ECF No. 90-5]. Plaintiff did not appear for her second noticed deposition on March 29, 2023. [ECF No. 90-6].
Defendant represents that twenty minutes after her deposition was scheduled to begin, on a phone call with Defendant's counsel, Plaintiff verbally stated that she would not attend the deposition based on the advice of counsel and until she “received discovery” from Defendant. [ECF No. 90 at 4, ECF No. 90-6].
Defendant represents that at this time, and at all times during this case, Plaintiff has not requested discovery from Defendant. [See ECF No. 90 at 4]. Defendant also represents that due to Plaintiff's last-minute nonappearance at her second scheduled deposition, Defendant had to undergo unnecessary costs such as payment to the court reporter's fees and attorney's fees. See id.
The next day, on March 29, 2023, Plaintiff filed a motion with the court to cancel her deposition arguing in full as follows:
On or about March 6, 2023, Pro Se Plaintiff contacted Defendant attorney's office to request the discovery from Defendant attorney's office. On or about March 20, 2023, Pro Se Plaintiff was advised by a licensed attorney that before Pro Se Plaintiff attends the deposition, Pro Se Plaintiff should obtain the discovery from Defendant's attorney. On Monday, March 27, 2023 at 2:32PM, Pro Se Plaintiff contacted Defendant attorney's office and spoke to Mandy Young to cancel the deposition appointment on Pro Se Plaintiff's behalf since Pro Se Plaintiff did not have the discovery from Defendant's attorney's office. Ms. Young stated she would inform Defendant's attorney that Pro Se Plaintiff cancelled. On Wednesday, March 29, 2023 at 10:56AM, Pro Se Plaintiff received a call from Attorney Alex Sherard. Attorney Sherard inquired if Pro Se Plaintiff would be attending the deposition. Pro Se Plaintiff informed Attorney Sherard that Pro Se Plaintiff contacted Defendant's attorney's office to cancel the deposition. Attorney Sherard went into a rage and began yelling at Pro Se Plaintiff stating that Pro Se Plaintiff had no right to cancel the deposition. Pro Se Plaintiff inquired if there was a form Pro Se Plaintiff needed to complete to get a copy of the discovery. Attorney Sherard stated he was not going to give Pro Se Plaintiff legal advice. Pro Se Plaintiff stated to Attorney Sherard she is afraid to attend the deposition and be verbally abused. Attorney Sherard stated he write to the Court that Pro Se Plaintiff was a “no show” to the deposition.[ECF No. 70].
On April 13, 2023, Defendant filed a motion to compel discovery under Fed.R.Civ.P. 37(a)(3)(B)(iii) and (iv), and for payment of expenses under Fed.R.Civ.P. 37(a)(5) regarding Plaintiff's insufficient answers to Defendant's December 12, 2022 discovery requests. [ECF No. 72]. Plaintiff did not file a response to Defendant's motion.
On May 3, 2023, Defendant served Plaintiff with a second amended notice of deposition, to which Plaintiff ultimately appeared on May 31, 2023. [ECF No. 90-7].
On June 1, 2023, the undersigned granted in part and denied in part, the motion to compel, directing Plaintiff to adequately respond to Defendant's discovery requests but denying Defendant's request for costs and fees. [ECF No.75]. As to the interrogatories, the order states: “Plaintiff is ordered to respond to interrogatories. . . in full and to respond to interrogatories 10 and 14 as limited by the court.” Id. at 17. As it relates to the requests for production, the order states as follows:
Defendant has indicated, and Plaintiff has failed to refute, that she provided no response to the requests for production....Plaintiff is ordered to produce the requested evidence, except that she may limit production of her Facebook data to the period beginning February 1, 2021 and her medical records to evidence related to her “emotional pain” and suffering since Plaintiff is directed to provide complete responses to interrogatories 1, 2, 6, 7, 8, 9, 10, 11, 12, 14, and 15, as modified above, and to the requests for production, as modified above, no later than June 9, 2023.
Plaintiff's failure to comply with the court's order may result in a recommendation that this case be dismissed for failure to participate in discovery and/or sanctions, including payment of Defendant's attorney fees and costs in preparing future motions to compel.Id. at 19.
On June 9, 2023, the deadline for Plaintiff to comply with the above order, Plaintiff requested an extension of time. [ECF Nos. 78, 80]. In relevant part, the order provides as follows:
[R]esponses to Defendant's interrogatories and requests for production [ECF No. 78]. Plaintiff is permitted until June 20, 2023, to provide complete responses to interrogatories 1, 2, 6, 7, 8, 9, 10, 11, 12, 14, and 15 and the requests for production, as modified by the court's June 1, 2023, order. No further extension will be granted. Plaintiff's failure to comply with this order will result in the court granting Defendant reasonable attorney fees and expenses associated with any related motion to compel discovery.[ECF No. 80].
On June 20, 2023, Plaintiff filed with the court her interrogatory responses, along with an unmarked USB drive. [ECF Nos. 82, 83]. Although the court prohibits the filing of discovery responses with the court, given Plaintiff's pro se status, the undersigned ordered the clerk of the court to mail Plaintiff's answers to Defendant. [ECF No. 84].
On June 22, 2023, the court mailed Plaintiff a copy of the text order [ECF No. 84] stating that parties should not file discovery with the court and that discovery responses should be served on opposing counsel. [ECF No. 85]. Under Local Civ. R. 5.01 (D.S.C.), discovery material and responses shall be served upon other counsel or parties “but shall not be filed with the court.” Id.
On June 26, 2023, Plaintiff filed additional unidentified discovery documents with the court, postmarked June 21, 2023. [ECF Nos. 88, 88-1].
Defendant represents that upon examining the contents of the USB drive mentioned above, Defendant “discovered that Plaintiff provided a sampling of random and unexplained ‘screenshots' from her social media account.” [ECF No. 90 at 7, see also ECF No. 83]. Defendant represents the USB drive contained no responses to the request for production, and even if such documents were responsive, Defendant would have no way to know what the documents pertained to because they were not identified in her response. [ECF No. 90 at 7].
Defendant also argues as follows:
To date, Plaintiff failed to comply with Fed.R.Civ.P. Rule 34(b)(2)(A) (timeliness in responding to requests for production; Fed.R.Civ.P. Rule 33(b)(3) (serving incomplete and evasive answers to interrogatories); Fed.R.Civ.P. Rule 37(d) (a party failing to attend their own deposition); Local Civ. R. 5.01 (D.S.C.) (filing discovery with the Court) and the Court's Order [ECF No. 75] to provide the District with Discovery responses by June 20, 2023. After nearly seven (7) months, Plaintiff remains out of compliance with the Fed. R, Civ. P. as it relates to her discovery responses and the Court's Order directing Plaintiff to respond. Plaintiff has not requested discovery from the District during the entirety of the case.Id.
Defendant filed the instant motion to dismiss and for sanctions on July 7, 2023. See id. Plaintiff filed her response in opposition on August 7, 2023. [ECF No. 96]. Plaintiff's opposition fails to respond substantively to any of Defendant's arguments, including that Plaintiff has repeatedly failed to participate in discovery, that Plaintiff is in violation of multiple federal and local rules, or that Plaintiff's actions warrant dismissal of her case and/or sanctions. See id. Instead, Plaintiff states she has “over communicated and remained as transparent as possible,” given discovery responses to Defendant and the Fourth Circuit, and contacted Defendant's counsel office to inform them she would like discovery from Defendant. See id. at 1-2. Plaintiff then provides what appears to be responses, with some supporting documentation attached, to Defendant's interrogatories. [ECF No. 96 at 2-9, ECF No. 96-1].
Plaintiff presumably is referencing her appeal filed with the Fourth Circuit challenging the dismissal in this case of certain defendants. [See ECF No. 34]. Plaintiff's appeal was dismissed by the Fourth Circuit on January 19, 2023. [See ECF Nos. 61, 63].
II. Discussion
A. Legal Standard
Fed. R. Civ. P. 41(b) authorizes the Court to dismiss an action if a plaintiff fails to comply with the Federal Rules of Civil Procedure. “There is no doubt that Federal Courts possess the inherent authority to dismiss a case with prejudice.” Jenkins v. S.C. Elec. & Gas, C/A No. 2:14-4139-RMG-BM, 2016 WL 11407772, at *2 (D.S.C. Feb. 1, 2016) (citations omitted), report and recommendation adopted, C/A No. 2:14-4139-RMG, 2016 WL 693493 (D.S.C. Feb. 19, 2016) (dismissing case with prejudice pursuant to Fed.R.Civ.P. 41(b)). Whether to dismiss an action under Rule 41(b) is a matter for the court's discretion. Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978). The Fourth Circuit provides a four-prong test for Rule 41(b) dismissal that requires courts to 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. Jenkins, 2016 WL 693493 at *2 (citing Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982)). Dismissal with prejudice is a “harsh sanction which should not be invoked lightly.” Chandler, 669 F.2d at 920 (citing Davis, 588 F.2d at 70).
As noted by Defendant, the standards for dismissal under either Fed.R.Civ.P. 41(b) or 37 “are virtually identical.” [See ECF No. 90 at 9 (citing Mut. Fed. Sav. & Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (providing the following four-part test for dismissal pursuant to Fed.R.Civ.P. 37: (1) whether the noncomplying 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.”)))].
Fed. R. Civ. P. 37 defines the sanctions a court may levy on a party who refuses to cooperate in discovery. Rule 37(d) provides that a court may order sanctions, including dismissal, if a party, after being properly served with interrogatories or requests for production fails to serve its answers, objections, or written response. Fed.R.Civ.P. 37(d)(1)(A), (d)(3); see also Fed.R.Civ.P. 37(a)(5)(A). Additionally, sanctions are appropriate where a plaintiff has impeded, delayed, and frustrated fair examination of her as a deponent. Fed.R.Civ.P. 30(d)(2).
B. Analysis
The record before the court shows Plaintiff failed to timely respond to Defendant's interrogatories, causing Defendant to file a motion to compel; failed to appear for her deposition, although it appears she repeatedly communicated with Defendant about the scheduled deposition; and, most significantly, failed to respond to Defendant's request for production adequately or timely.
In her deposition testimony, when asked why she did not respond to the requests for production, Plaintiff testified “it's a lot of work” and “it's a lot of research.” [ECF No. 90-7 at 133:5-20]. Specifically, in request for production number 7, Defendant seeks Plaintiff's tax returns for the purpose of measuring her alleged damages under the causes of action brought. Plaintiff testified that she could provide her tax returns, but she has not demonstrated a reason as to why she has not provided them. Id. at 135:24-136:3. It appears Plaintiff acknowledges that she possesses the requested documents but gives no valid reason as to why she has not or cannot provide them to Defendant.
In opposition to Defendant's instant motion, as stated above, Plaintiff has submitted certain documents including one 2022 W-2 and one 2021 form 1099-NEC. [ECF No. 96-1 at 38-39]. It is unclear if Plaintiff's position is that these documents sufficiently address both Defendant's interrogatory number 6 and request for production 7. [See ECF No. 90-1 at 7 (“Beginning in November 2021 and continuing to the present, provide the source and amount of any income Plaintiff has received ....”); Id. at 14 (“Any and all documents concerning any income or benefits ....from November 2021 through the present ....”)].
As to prongs one and three, Plaintiff is wholly responsible for her conduct, and this conduct has been ongoing. The undersigned notes, however, that it appears that Plaintiff was attempting to satisfy her discovery obligations consistent with the deadline provided by the court when Plaintiff submitted to the court documents and interrogatory responses on June 20, 2023. [See ECF Nos. 80, 82, 83, 84].
Defendant additionally argues that there is ample evidence of bad faith on Plaintiff's part, including her continuing to file documents with the court even after being warned otherwise and failing to provide a sufficient reason for not responding to Defendant's request for production. [See ECF No. 90 at 10-12]. Although Plaintiff did file documents with the court incorrectly, the second time she did so, the documents were mailed the same day the court issued the text order directing discovery to only be served on counsel. [ECF Nos. 84, 881]. Additionally, as noted above, it appears that Plaintiff was attempting to satisfy her discovery obligations consistent with the deadline provided by the court when Plaintiff submitted to the court documents and interrogatory responses on June 20, 2023.
Turning to prong two, Defendant has sustained prejudice. Plaintiff's actions have led to Defendant filing a motion to compel, the court issuing three amended scheduling orders, and Defendant having to notice Plaintiff for her deposition multiple times. Additionally, Defendant's ability to ascertain the facts and prepare a defense in this action has also been impacted by Plaintiff's actions. As to this issue, Defendant argues as follows:
The discovery Plaintiff has refused to provide is basic discovery directly related to her claims and damages. In her Amended Complaint, Plaintiff makes various allegations that she was sexually harassed by a co-worker. [ECF No. 14]. In its Requests for Production numbers 1, 2, 3, and 4 the District seeks documentation that could corroborate or dispel the allegations in her Amended Complaint. (Exhibit A ¶¶ 1-4, Requests for Prod.). Additionally, in her Amended Complaint Plaintiff seeks damages, inter alia, of $5,000,000.00. [ECF No. 14 at 10]. In its Requests for Production numbers 6, 7, 8, and 9, the District seeks documents to corroborate or defend against her claim of damages as stated. Specifically, Request for Production 7 seeks documents showing whether or not Plaintiff mitigated her damages since being terminated from the District. (Exhibit A ¶¶ 7, Requests for Prod.). Finally, Plaintiff alleges throughout her Amended Complaint that District officials acted in concert to improperly follow legal and District protocols in the Title IX investigation conducted by officials stemming from her Title IX complaint. [ECF No. 14 at 7-10]. In Request for Production 11, the District seeks documents Plaintiff possesses to prove her claims regarding such conspiratorial conduct that she may use to show evidence of her allegations of conspiracy among District officials. Id. However, along with responses to all other requests for production, Plaintiff failed to respond.
Since Plaintiff has not made any discovery requests to the District, the scope of what Plaintiff may intend to show at trial is necessary for the District either in a motion for summary judgment or in its defense at trial. Plaintiff's failure to provide appropriate responses, denials, or objections greatly prejudices the District in possibly defending this case at trial for questions related to liability and damages.[ECF No. 90 at 12-13].
The undersigned notes, however, that currently Defendant is in possession of interrogatory responses, certain documents, and Plaintiff's deposition, as well as Plaintiff's opposition to Defendant's instant motion wherein it appears she attempts to address her discovery deficiencies.Although certainly hampered by Plaintiff's failure to engage in the discovery process more fully, the court is mindful of the efforts she has been made as well as her pro se status.
Defendant has not filed a reply to Plaintiff's opposition and the time to do so has expired.
Defendant argues that “Plaintiff has demonstrated her utter disregard for the Court's order, by blatantly not providing the District with the discovery responses it is entitled to receive. Furthermore, Plaintiff has repeatedly treated other Orders, local rules, and Civil Rules, as though she is exempt from compliance ....” [ECF No. 90 at 14]. However, as explained above, Plaintiff has not evidenced the “utter disregard” Defendant attributes to her.
Most importantly, the undersigned finds that, regarding the fourth prong, it appears sanctions significantly less drastic than dismissal would be effective in deterring Plaintiff's behavior. Plaintiff is reminded that although “Federal Courts have historically treated pro se litigants with some degree of liberality, pro se litigants are not immune from any sanction by virtue of their status alone.” Jenkins, 2016 WL 11407772, at *3 (citations omitted).
Notwithstanding, this case stands in contrast to those cited to by Defendant. See, e.g., Cooper v. Spartanburg Sch. Dist. 7, C/A No. 7:150-3072-JMC-JDA, 2017 WL 9289401, at *4 (D.S.C. Feb. 24, 2017) (recommending dismissal of pro se plaintiff's case and finding bad faith where the plaintiff failed to follow the court's order to provide discovery responses and instead “indicated that discovery was ongoing” when it was not, failed to answer questions in his initial deposition, and failed to attend his reconvened deposition ordered by the court); Evans v. Land Star Transportation Logistic, Inc., C/A No. 0:15-3521-JFA-SVH, 2016 WL 11397826, at *1 (D.S.C. May 12, 2016) (recommending dismissal where the pro se plaintiff repeatedly failed to provide any discovery responses notwithstanding two orders from the court directing him to do so); Williams v. Wal Mart Stores, C/A No. 1:17-734-DCC-PJG, 2018 WL 3235601, at *1 (D.S.C. May 3, 2018) (recommending dismissal of pro se plaintiff's case where he failed to provide discovery responses following two orders by the court directing him to do so); Gilbert v. City of Spartanburg, C/A No. 7:16-03088-MGL-JDA, 2017 WL 1040725, at *3 (D.S.C. Feb. 24, 2017) (recommending dismissal where the pro se plaintiff repeatedly failed to comply with more than one order of the court, did not provide the defendants with discovery, and did not communicated with the defendants); Jones v. Wal-Mart, C/A No. 8:10-988-JMC-JDA, 2011 WL 7445488, at *3 (D.S.C. Oct. 28, 2011) (recommending dismissal where the pro se plaintiff repeatedly failed to comply with more than one order of the court); see also Dancy v. Univ. of N. Carolina at Charlotte, C/A No. 3:08-166-RJC-DCK, 2009 WL 2424039, at *2 (W.D. N.C. Aug. 3, 2009) (“The Defendants point out that the Plaintiff has made no effort to provide any substantive responses, despite ample time to do so, and has not communicated with Defendants' counsel to indicate why she has not responded. Plaintiff has not sought additional time from Defendants or from this Court. No good reasons for any delay are apparent from the record. The undersigned will not condone dilatory action. Accordingly, the undersigned will order Plaintiff to provide complete responses to Defendants' discovery requests.”).
Key to the cases cited by Defendant is the pro se plaintiffs repeated failures to comply with court orders. Here, the only relevant court order was issued on June 1, 2023, directing Plaintiff to respond to Defendant's discovery requests no later than June 9, 2023, a deadline thereafter extended by the court at Plaintiff's request to June 20, 2023. [ECF Nos. 75, 80]. Thereafter, Plaintiff filed discovery responses, albeit with the court instead of Defendant, on June 20, 2023, consistent with the court's order. [ECF Nos. 82, 83]. Although Defendant indicates Plaintiff's discovery responses are inadequate, Defendant does so only in general terms, has not moved for more complete responses, and has not addressed responses and documents submitted by Plaintiff in opposition to Defendant's instant motion.
Accordingly, the undersigned declines to recommend the harsh sanction of dismissal of Plaintiff's case with prejudice nor that monetary sanctions be levied on Plaintiff. Plaintiff now has been repeatedly warned as to the importance of her full and complete participation in the discovery process, and Defendant can move for any outstanding discovery, to the extent necessary.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge deny Defendant's motion to dismiss and for sanctions. [ECF No. 90].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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 901 Richland Street Columbia, South Carolina 29201
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).