United States District Court, D. South Carolina, Greenville Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge
matter is before the court with the Report and Recommendation
of United States Magistrate Judge Kevin F. McDonald, made in
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 of the District of South Carolina. Armando Despaigne
Zulveta (“Zulveta”), proceeding pro se, asserts
claims against TC Unlimited, Inc. (“TC
Unlimited”) and Tim Case (“Case”)
(collectively “Defendants”) for retaliation, in
violation of Title VII of the Civil Rights Act of 1964
(“Title VII”). Defendants filed a motion
requesting sanctions against Zulveta for Zulveta's
failure to appear at a properly noticed deposition. Zulveta
seeks sanctions for various alleged misconduct by Defendants
and defense counsel. Magistrate Judge McDonald recommends
denying Zulveta's motion for sanctions, granting
Defendants' motion for sanctions, and dismissing the case
Factual Background and Procedural History
was employed by TC Unlimited and alleges that Defendants
retaliated against Zulveta for filing a worker's
compensation claim. (Compl., generally, ECF No. 1.) Zulveta
filed the instant case on July 23, 2015. (Id., ECF
No. 1.) On August 24, 2016, the court entered a scheduling
order providing that discovery shall be completed no later
than February 6, 2017. (Feb. 6, 2017 Order, ECF No. 118.)
Defense counsel alleges that he made multiple efforts to
schedule Zulveta's deposition at a mutually agreeable
time prior to the discovery deadline, but Zulveta was
uncooperative. (Def. Mot. for Sanctions Ex. 1 (Domin Aff.
¶¶ 2-3), ECF No. 141-2.) On December 16, 2016,
defense counsel noticed Zulveta's deposition for January
11, 2017, in Greenville, South Carolina. (Id. Ex. 2
(Notice of Dep.), ECF No. 141-3.) Zulveta sent a series of
emails to defense counsel on January 6, 2017, which appear to
accuse the court of colluding with defense counsel, and state
that Zulveta was considering deposing a number of unrelated
third parties. (Id. Ex. 3 (First Set of Emails 3-6),
ECF No. 141-4.) In response, defense counsel responded,
“Does that message mean you will be attending your
deposition on Jan. 11 or not?” (Id. Ex. 3
(First Set of Emails 2), ECF No. 141-4.) On January 10, 2017,
Zulveta sent several unresponsive emails, wherein he
reiterated his intent to depose a variety of unrelated third
parties. (Id. Ex. 3 (First Set of Emails 1-2), ECF
No. 141-4.) Defense counsel replied on January 10, stating:
Are you coming to your duly noticed deposition tomorrow or
not? Please answer yes or no.
None of your e-mails answer this question other than your
stating that “there is no need for Plaintiff-Appellant
Zulveta to assist in it.” That is not your decision to
make. Your desire not to assist in your deposition does not
change that I have a right to take your deposition to find
out about your claims and evidence.
Absent a clear answer from you, I will be forced to drive to
Greenville to show up. So will two other hard working
people----the independent court reporter and independent
translator. If you fail to show, I will immediately move for
sanctions in connection with said failure and will shift the
cost to you of the failed effort. If you tell me that you are
not attending, I will still move for sanctions and other
relief. But I will cancel the court reporter and translator
and will not drive to Greenville.
(Def. Mot. Sanctions Ex. 3 (First Set of Emails 1), ECF No.
141-4.) Zulveta replied the same day, requesting defense
counsel “[l]et me know if you can have [requested
documents] early on January 11, 2016 so I can be there
tomorrow on time.” (Id. Ex. 4 (Second Set of
Emails 2), ECF No. 141-5.) Defense counsel replied “I
look forward to seeing you at my Greenville office tomorrow
at 11 a.m.” (Id. Ex. 4 (Second Set of Emails
1) ECF No. 141-5.) Zulveta replied, in pertinent part,
“Take a good seat and wait on me.” (Id.
Ex. 4 (Second Set of Emails 1) ECF No. 141-5.) Finally,
defense counsel replied, in pertinent part:
Based on your positive comment that you will be there
“tomorrow on time, ” I look forward to seeing
you. If you are not present, I cannot simply await an arrival
from you for an indefinite time. If you fail to attend, it is
customary to wait approximately 10-15 minutes and then we
will depart. Please note that you can find maps online on my
firm's website or from a variety of mapping programs.
(Id. Ex. 4 (Second Set of Emails 1) ECF No. 141-5.)
In response, Zulveta sent a series of emails again accusing
defense counsel of various misconduct and discussed the
mailing of several documents. (Def. Mot. Sanctions Ex. 5
(Third Set of Emails 1-2), ECF No. 141-6.) Defense counsel
replied: “You don't need to mail it because I will
see you tomorrow! I look forward to discussing all of your
evidence and exhibits with you in your deposition.”
(Id. Ex. 5 (Third Set of Emails 1), ECF No. 141-6.)
January 11, 2017, Zulveta did not appear for his deposition,
nor did he arrive at any point that day. (Id. Ex. 1
(Domin Aff. ¶ 4), ECF No. 141-2.) Defense counsel has
submitted an affidavit and invoices showing that Defendants
have incurred the following costs and expenses: (1) $126.00
for the court reporter's appearance fee and transcript;
(2) $150.00 for the interpreter's appearance fee; and (3)
$1, 610 in attorney's fees for travel to and from
Greenville, time spent waiting, preparation for the
deposition, and drafting the Defendant's motion for
sanctions. (Id. Ex 1 (Domin Aff. ¶ 5), ECF No.
February 6, 2017, Zulveta sent several fax messages to
defense counsel requesting that his deposition be rescheduled
for February 13, 2017, in Charlotte, North Carolina. (Pl.
Supp. Mot. Sanctions Ex. 1 (Feb. 7, 2017 Email), ECF No.
165-1.) Defense counsel stated that he was unavailable that
day and was not willing to reschedule Zulveta's
deposition because Zulveta had not reimbursed his client for
the costs of the previous deposition and defense counsel did
not believe that Zulveta's offer was sincere.
(Id. Ex. 1 (Feb. 7, 2017 Email), ECF No. 165-1.)
January 19, 2017, Defendants filed the instant motion seeking
sanctions against Zulveta including costs and dismissal of
the case with prejudice, or, in the alternative, for
sanctions and an extension of the scheduling order. (Def.
Mot. Sanctions, ECF No. 141.) Zulveta filed a response in
opposition on January 27, 2017. (Resp. Opp'n Def. Mot.
Sanctions, ECF No. 147.) On January 30, 2017, Defendants
replied. (Def. Reply, ECF No. 150.) The magistrate judge
issued a Roseboro order on February 2, 2017, warning
Zulvetta of the consequences of failing to adequately explain
his failure to attend his deposition. (Feb. 2, 2017 Order,
ECF No. 151.)
February 2, 2017, Zulveta filed his own motion for sanctions.
(Pl. Mot. Sanctions, ECF No. 153.) Additionally, Zulveta
appealed the magistrate judge's Roseboro order
on February 6, 2017. (Feb. 6, 2017 Notice of Appeal, ECF No.
158.) On February 6, 2017, Defendants responded to
Zulveta's motion. (Resp. Opp'n Pl. Mot. Sanctions,
ECF No. ...