United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
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 June 4,
2019, Defendant Southeastern Grocers, LLC
(“Defendant”) filed a Motion for Sanctions (Dkt.
No. 66) based on Plaintiff's “repeated failures to
comply with this Court's orders and the applicable rules
of procedure.” (Dkt. No. 73 at 1.) Defendant asks that
the Court dismiss this action with prejudice and impose
monetary sanctions against Plaintiff “in an amount to
be determined by the Court.” (Dkt. No. 66 at 11.)
review of the docket in this case as well as the motions and
other filings with the Court reveals that Plaintiff has
failed to properly engage in discovery with Defendant and has
failed to comply with the Court's directives. Defendant
served its First Request for Production and First Set of
Interrogatories on Plaintiff on January 29, 2019. Plaintiff
failed to respond to the Discovery Requests, which were due
on February 28, 2019. Plaintiff was not communicative when
defense counsel requested Plaintiff provide his responses to
the discovery requests and asked Plaintiff to provide dates
on which he was available for his deposition. Based on
Plaintiff's failure to respond, Defendant filed a Motion
to Compel Discovery on March 19, 2019. (Dkt. No. 52.)
Plaintiff did not respond to Defendant's motion. The
Court granted in part Defendant's Motion to Compel
Discovery and ordered Plaintiff “to provide his
responses to Defendant's Discovery Requests and any and
all documents responsive to same by April 18, 2019.”
(Dkt. No. 53.) In this April 8, 2019 Order, the Court also
advised Plaintiff that failure to comply with discovery
orders could result in the dismissal of this action.
(Id. at 2.)
then filed a Motion for Extension on April 16, 2019, claiming
that he never received Defendant's discovery requests or
any correspondence from defense counsel. (Dkt. No. 55.) He
requested a 60-day extension to respond to the discovery
requests. (Id.) The Court expressed doubt as to how
Plaintiff could have received all correspondence from the
Court, but not receive any documents sent by Defendant.
Nevertheless, and in an abundance of caution, the Court
extended the deadline for Plaintiff to respond to
Defendant's discovery requests to May 22, 2019. (Dkt. No.
April 23, 2019, Defendant filed a Motion to Compel Plaintiff
to Provide Updated Contact Information, to Extend the
Discovery Deadline, and to Conduct a Telephonic Status
Conference. (Dkt. No. 58.) The next day, the Court entered an
Order setting an in-person status conference with the parties
for May 1, 2019. (Dkt. No. 60.) The Court also set a deadline
of May 3, 2019 for Plaintiff to provide defense counsel with
his current mailing address, working phone number, and email
address. (Id.) Additionally, the Court adopted
Defendant's proposed Amended Scheduling Order, which
extended the discovery deadline to June 28, 2019. (Dkt. Nos.
59; 60.) Defense counsel appeared in person at the May 1,
2019 status conference; however, Plaintiff failed to appear.
The parties eventually agreed upon a date for Plaintiff's
deposition. On May 16, 2019, Defendant sent Plaintiff the
Notice of Deposition, which set the deposition for June 11,
2019. Plaintiff failed to provide Defendant with his
responses to the discovery requests by May 22, 2019, in
violation of the Court's April 17, 2019 Order. Plaintiff
did not respond to email communications from defense counsel
sent on May 24, 2019 and May 29, 2019, asking about the
status of Plaintiff's discovery responses.
filed the instant Motion for Sanctions on June 4, 2019. (Dkt.
No. 66.) On June 4, 2019, Plaintiff filed a “Response
to Interrogatory” which stated, “the response to
the request for Interrogatory for Defendant South Eastern
Groceries.” (Dkt. No. 68.) Specifically, this filing
provided “the answers to the 16 questions asked for
information on people who know or have information regarding
plaintiffs' work history.” (Id.) By Text
Order on June 6, 2019, the Court informed Plaintiff that
there was no indication Plaintiff's response had been
served on Defendant; that filing this document with the Court
does not accomplish service upon Defendant, as required under
the Federal Rules of Civil Procedure; and that Plaintiff is
responsible for serving discovery requests and responses to
discovery requests upon Defendant pursuant to the Federal
Rules of Civil Procedure. (Dkt. No. 70.) In their reply
brief, Defendant states that Plaintiff never effectuated
proper service of this response. (Dkt. No. 73 at 2.)
Defendant further explains that this “response”
filed by Plaintiff “appears to be an incomplete
response to Interrogatory No. 1” and that there
“were also 15 other interrogatories that Plaintiff did
not even attempt to answer.” (Id.) Defendant
also explains that its discovery requests “included
Defendant's First Request for Production, which asked him
to produce documents responsive to 29 various
categories”-Plaintiff has not responded to these
discovery requests. (Id.)
filed a response to the Motions for Sanctions on June 11,
2019, asserting that he has “complied with all
request[s] as needed from Defendants.” (Dkt. No. 72 at
1.) Plaintiff offered no compelling reasons for his failure
to respond to the majority of Defendants' discovery
requests and his failure to appear for the in-person status
conference. Defendant filed a reply brief on June 17, 2019,
alleging that Plaintiff's assertion is
“inconsistent with the documented history of the case
and the representations he previously made to the
Court.” (Dkt. No. 73 at 4.) Defendant also explained
that defense counsel canceled Plaintiff's June 11, 2019
deposition because “it would be a waste of both his and
Plaintiff's time to depose Plaintiff . . . without
discovery responses and document production.”
(Id. at 5.)
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”).
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).
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).
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 ...