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Zulveta v. TC Unlimited, Inc.

United States District Court, D. South Carolina, Greenville Division

March 13, 2017

Armando Despaigne Zulveta, Plaintiff,
TC Unlimited, Inc., Tim Case, Defendants.

          OPINION & ORDER

          Henry M. Herlong, Jr. Senior United States District Judge

         This 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.[1] 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 with prejudice.

         I. Factual Background and Procedural History

         Zulveta 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.)

         On 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. 141-2.)

         On 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.)

         On 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[2] 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.)

         On 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. ...

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