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Cooper v. Spartanburg School District 7

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

September 17, 2017

Wendell Cooper, Plaintiff,
v.
Spartanburg School District 7, Defendant.

          ORDER AND OPINION

         This matter is before the court on Defendant Spartanburg County School District No. 7's (“Defendant”) motions to dismiss (ECF Nos. 72, 75.) Plaintiff is proceeding pro se. Pursuant to the provisions of 28 U.S.C. §636(b)(1)(B) (2012) and Local Civil Rule 73.02(B)(2)(e), D.S.C. (2017), this matter was referred to United States Magistrate Judge Jacquelyn D. Austin for a Report and Recommendation. On February 24, 2016, Judge Austin issued a Report and Recommendation (“Report”) recommending that the court grant Defendant's motions to dismiss pursuant to Fed.R.Civ.P. 37 and 41(b). (ECF No. 92.) For the reasons stated herein, the court ADOPTS the Report and Recommendation (ECF No. 92), and therefore Defendant's motions to dismiss (ECF Nos. 72, 75) are GRANTED. It is therefore ORDERED that Plaintiff's action (ECF No. 1) is DISMISSED with prejudice.

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff filed his initial action in this court on August 5, 2015, alleging causes of action for violations of the Family and Medical Leave Act (“FMLA”) (29 U.S.C. §2601, et. seq.) (2012) (ECF No. 1 at 10 ¶ 38.) Plaintiff's second cause of action is for retaliation in violation of Title VII of the Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.) (2012) and 42 U.S.C. §§ 1981, 1981(b) (2012). (ECF No. 1 at 11 ¶ 41.) Plaintiff's third cause of action is for breach of contract in violation of South Carolina Code §§ 59-2-50 (2017), 41-10-30 (2017), 41-1-10 (2017). (ECF No. 1 at 13 ¶ 44.) Plaintiff's fourth cause of action is for discrimination based on disability in violation of Title IV of the Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101, et seq.) (2012) (ECF No. 1 at 14 ¶ 50.) Plaintiff's fifth cause of action is for retaliation under Titles I and V of the ADA (42 U.S.C. § 12203(a-b) (2012)). (ECF No. 1 at 16-17.)

         On November 3, 2015 Defendant filed an answer to the complaint. (ECF No. 14.) On November 12, 2015, the court issued a conference and scheduling order, in which a discovery deadline of April 27, 2016 was set. (ECF No. 17.) On January 15, 2016, a consent order amending the schedule was entered and the discovery deadline was extended to September 26, 2016. (ECF No. 30.) On September 26, 2016, two motions for extension of time for discovery were filed by Plaintiff, one for Plaintiff's responses to Request for Admissions (ECF No. 42), and the other for Plaintiff's Response to Production of Documents (ECF No. 43.) Also on September 26, 2016, Defendant filed a motion to compel discovery responses from Plaintiff and to allow additional deposition time of Plaintiff. (ECF No. 44.) Attached to Defendant's motion to compel, were Defendant's Interrogatories to Plaintiff and a certificate of service on Plaintiff (ECF No. 44-1) and Defendant's Request for Production to Plaintiff and a certificate of service on Plaintiff (ECF No. 44-2.) Both of these certificates of service were dated August 16, 2016. (ECF Nos. 44-1 and 44-2.) Plaintiff was deposed on September 26, 2016, but Defendant claims Plaintiff was unresponsive and had not responded to Defendant's interrogatories or request for production. (ECF No. 44 at 3); see also (ECF No. 72-1.) Plaintiff eventually responded to both Defendant's interrogatories and request for production on November 14, 2016. (ECF Nos. 72-3, 72-4.)

         After review of Plaintiff's motions for an extension of time and Defendant's motion to compel, the Magistrate Judge entered a text order on September 27, 2016 stating in part that “Plaintiff has previously been warned that his failure to comply with discovery requests may result in the imposition of sanctions and/or dismissal of a case.” (ECF No. 45.) In the same order, Plaintiff was ordered to show cause within twenty (20) days after entry of the order as to why he had not complied with Defendant's discovery requests, why he refused to answer questions at his September 26, 2016 deposition, and why he should not be sanctioned by the court for this failure. Id.

         On October 3, 2016, Plaintiff filed another motion to extend time to reply to Defendant's Answer to Plaintiff's Request for Admission. (ECF No. 48.) On October 11, 2015, Plaintiff filed a motion to strike Defendant's motion to compel his discovery response and for additional time to take his deposition. (ECF No. 52.) On October 15, 2016, Defendant responded in opposition to Plaintiff's previous three motions (ECF Nos. 42, 43, 48.) (ECF No. 62.) On October 20, 2016, Plaintiff replied to the order to show cause. (ECF No. 65.) On October 27, 2016, the Magistrate Judge entered an order denying Plaintiff's motions for extension of time (ECF Nos. 42, 43, 48), granting Defendant's motion to compel (ECF No. 44), and denying Plaintiff's motion to strike Defendant's motion to compel (ECF No. 52). (ECF No. 66.)

         In the October 27, 2016 order, Plaintiff was ordered by November 10, 2016 to “provide full and complete written responses to Defendant's interrogatories and requests for production. Further, [his] deposition shall be reconvened, and [he] is ordered to answer questions and participate fully in his deposition.” (ECF No. 66.) Plaintiff was also given a final warning about not complying with Defendant's discovery requests and that failure to comply may result in sanctions. (ECF No. 66 at 3-4.) On November 2, 2016, Plaintiff was served by process server with a notice and subpoena to testify at the reconvened deposition on November 15, 2016. (ECF No. 72-2.) The subpoena also directed Plaintiff to bring copies of the previously court-ordered responses to Defendant's interrogatories and request for production. (ECF No. 72-2.) On November 14, 2016, Plaintiff sent an e-mail and facsimile to counsel for Defendant with Plaintiff's responses to Defendant's request for admissions (ECF No. 72-3) and Defendant's first set of interrogatories (ECF No. 72-4), and indicated that they were also being mailed to Defendant's counsel as well.

         On November 15, 2016, Defendant filed its first motion to dismiss under Fed.R.Civ.P. Rule 37, 37 (b)(2)(A)(v) and 41(b) for Plaintiff's failure to comply with the court's order that “Plaintiff shall by November 10, 2016, provide full and complete written responses to Defendant's interrogatories and requests for production.” (ECF No. 72.) On November 15, 2016, a “Roseboro Order” was sent to Plaintiff advising him about the procedures for dismissal/summary judgment, the requirements of the parties, and the consequences of not responding to Defendant's motion. (ECF No. 73.)

         On November 15, 2016, Plaintiffs deposition was reconvened, but apparently he was not feeling well (ECF No. 82 at 193), so both parties mutually decided to reconvene the deposition again on Friday, November 18, 2016. (ECF No. 82 at 197-98.) On November 17, 2016, Plaintiff e-mailed Defendant's counsel stating that he was cancelling his deposition and that he would submit a doctor's note. (ECF No. 75-2.) Defendant responded to the e-mail on the same day and stated in part that Plaintiff could not unilaterally cancel the deposition and that it would continue as planned, and if Plaintiff did not show up for the deposition, it would seek sanctions against him. (ECF No. 75-3.) Plaintiff did not attend the deposition of November 18, 2016, and Defendant filed its second motion to dismiss adding Fed.R.Civ.P. 37(d) as a ground for dismissal. (ECF No. 75.)

         Plaintiff filed two responses in opposition to Defendant's first and second motion to dismiss on December 19 and 21, 2016 respectively. (ECF Nos. 78, 80.) In Plaintiff's December 21, 2016 response, he included a doctor's note with supporting documentation as to why he could not be present at the November 18, 2016 deposition. On December 28, 2016, Defendant filed a reply to Plaintiff's response. (ECF Nos. 81, 82.)

         On February 24, 2017, the Magistrate Judge issued a Report and Recommendation recommending to the court that it grant both of Defendant's motions to dismiss under Fed.R.Civ.P. 37 and 41(b) (ECF Nos. 72, 75.) (ECF No. 92.) On March 9, 2017, Plaintiff moved for an extension of time to file response/reply to the Magistrate Judge's findings. (ECF No. 95.) On March 10, 2017, Plaintiff's motion for extension of time (ECF No. 95) was granted with replies being due on March 20, 2017. (ECF No. 96.) On March 21, 2017, Plaintiff filed his objections to the Magistrate Judge's Report. (ECF No. 97.) On March 31, 2017, Defendant moved for an extension of time to file response/reply as to objections made by Plaintiff. (ECF No. 101.) On April 4, 2017, Defendant's motion for an extension of time (ECF No. 101) was granted and the reply was due on April 11, 2017. (ECF No. 102.) On April 11, 2017, Defendant entered its reply to Plaintiff's objections (ECF No. 97). (ECF No. 104.)

         II. LEGAL STANDARD

         The Magistrate Judge's Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Matthews v. Weber, 423 U.S. 261, 270-71 (1976) (“The magistrate may do no more than propose a recommendation, and neither [28 U.S.C.] § 636(b) nor the General Order gives such recommendation presumptive weight.”) This court is charged with making a de novo determination of those portions of the report to which specific objections are made, and the court may accept, reject or modify, in whole or in part, the Magistrate Judge's recommendation, or recommit the matter with instructions. See 28 U.S.C. § 636 (b)(1)(C). Objections to a Report and Recommendation must specifically identify portions of the Report and the basis of those objections. Fed.R.Civ.P. 72(b). “[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, 316 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments that, under the mandated liberal construction, it has reasonably found to state a claim. Boag v. MacDougall, 454 U.S. 364, 365 (1982).

         III. ...


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