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James v. Berryhill

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

July 2, 2019

Vernice L. James, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE.

         This action has been filed by the Plaintiff, pro se, asserting claims under Title VII of the Civil Rights of 1964, 42 U.S.C. § 2000e, et seq., as well as under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626, et seq. By Order filed April 9, 2018, Plaintiff was granted IFP status. Service of process was authorized by separate Order entered May 18, 2018, and an answer was filed by the Defendant on August 29, 2018.

         On February 8, 2019, the Defendant filed a motion to compel deposition, responses to written discovery, and to extend discovery. In this motion, Defendant represented that Plaintiff had failed to appear for her deposition or to contact defense counsel to reschedule her deposition, thereby resulting in the Defendant incurring appearance fees for the court reporter. Plaintiff had also failed to respond to interrogatories, requests to produce, or requests to admit which had been served on her, and had further failed to respond to any communication from the U.S. Attorney's Office. The Defendant sought an order compelling Plaintiff to respond to Defendant's written discovery requests, and requiring Plaintiff to attend her deposition.

         Plaintiff failed to respond to this motion, and on February 25, 2019 the Court entered an Order granting the motion, requiring Plaintiff to submit proper responses to the cited discovery requests within ten (10) days of the date of that Order, and to attend her deposition (which was to scheduled and noticed by the Defendant). Although the Defendant had also requested an award of attorneys fees and costs, that request was denied at that time, without prejudice, with leave to renew. Finally, Plaintiff was also specifically advised, in bold type, that if she failed to comply with that Order, her case would be recommended for dismissal. Plaintiff thereafter filed a “response” with the Court on March 12, 2019, advising that she had had a death in the family and also planned to take a few days leave to spend spring break with her granddaughter, and requesting additional time to prepare for her deposition, and also to depose “the Agency (Defendant)”. The Defendant responded with a filing indicating that, in response to Plaintiff's request to reschedule her deposition until after her granddaughter's spring break, it had sent out a new deposition notice setting Plaintiff's deposition for April 17, 2019. However, the Defendant also further advised the Court in that filing that Plaintiff had failed to respond to Defendant's discovery requests as directed by the Court in it's previous Order granting Defendant's motion to compel.

         On April 17, 2019, Plaintiff filed a motion for judgment on the pleadings. Plaintiff's motion reads, in its entirety, “Plaintiff hereby moves for Motion for an On the Record Decision based on the evidence in the file”. The Defendant thereafter filed a motion for discovery sanctions on April 30, 2019, [1] asking that Plaintiffs Complaint be dismissed on the grounds that Plaintiff had again failed to appear for her duly noticed deposition and had also still failed to submit proper responses to the Defendant's written discovery requests. In that motion, Defendant further seeks reimbursement for the deposition costs incurred for the two occasions when Plaintiff failed to appear for her deposition. Plaintiff has failed to file a response to the Defendant's motion to dismiss her case for failing to cooperate in discovery or comply with the Court's Order of February 25, 2019.[2]

         Discussion

         Rule 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. Further, 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, rehg. denied, 371 U.S. 873 (1962); Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991); Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997). Whether to dismiss under Rule 41(b) is 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 is 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. Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982); Tinsley v. Quick & Reilly, Inc., 216 F.R.D. 337, 338 (E.D.Va. 2001); Contreras v. NFN Pettiford, No. 05-3552, 2006 WL 2621866 (D.S.C. Sept. 11, 2006).

         A review of the file and docket of this case, all as is discussed more fully hereinabove, shows that Plaintiff has failed to comply with court orders directing her to comply with discovery requests from the Defendant, that she failed to respond to motions filed with this Court or with instructions received from the Court, and that she has repeatedly failed to appear for noticed depositions. Hence, the degree of personal responsibility of the Plaintiff is manifest. The docket and filings in this case further clearly set out a “drawn-out history of deliberately proceeding in a dilatory fashion” by the Plaintiff. Therefore, Plaintiff meets the first and third prongs of the Fourth Circuit's four prong test. Additionally, while the Plaintiff has engaged in the conduct described herein, the continuation of this action has caused the Defendant to incur continuing costs and expenses associated with this lawsuit. Further, Plaintiff's failure cooperate in discovery has prejudiced the Defendant's ability to ascertain the facts and prepare a defense in this action. Therefore, the facts in this case also satisfy the second prong of the Fourth Circuit's four prong test.

         As for the fourth prong of the Fourth Circuit's four prong test, the record in this case shows that Plaintiff has failed to respond to written discovery requests from the Defendant, has failed to respond to motions filed by the Defendant, has failed to attend her noticed depositions, and has failed to comply with court orders relating to the continued prosecution of this case. While the undersigned is mindful of the fact that Plaintiff is without counsel, and that federal courts have historically treated pro se litigants with some degree of liberality, pro se litigants are not immune from sanction by virtue of their status alone. See e.g. also Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989), cert. denied sub nom., Ballard v. Volunteers of America, 493 U.S. 1084 (1990); Gantt v. Maryland Div. Of Correction, 894 F.Supp. 226 (D.Md. 1995), aff'd, 73 F.3d 357 (4th Cir. 1996). In this case, in light of Plaintiff's IFP status, an award of monetary sanctions in this case as opposed to dismissal would not be an appropriate or effective sanction. Moreover, Plaintiff has previously been specifically warned by the Court that her failure to cooperate in discovery would result in a recommendation of dismissal of her case. Cf. Ballard, 882 F.2d at 95 [Magistrate judge's prior explicit warning that a recommendation of dismissal would result from Plaintiff failing to obey his order was proper grounds for the district court to dismiss suit when Plaintiff did not comply despite warning]. Even so, Plaintiff failed to submit responses to the Defendant's discovery requests or otherwise properly respond to Defendant's inquiries, and she continues to refuse to sit for a deposition. Therefore, dismissal is the appropriate sanction in this case. Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 954, n.2 (4th Cir. 1987) [noting that warning to parties was a “salient fact” that distinguished cases in which default judgment was appropriate sanction for discovery abuse under Rule 37]; see also Mutual Federal Savings and Loan Ass'n v. Richards & Associates, Inc., 872 F.2d 88, 92 (4th Cir. 1989).

         Conclusion

         Based on the foregoing, it is recommended that the Defendant's motion to dismiss Plaintiffs Complaint, with prejudice, as a discovery sanction be granted. See Rules 37(b)(2) and 41(b), Fed.R.Civ.P. In light of this recommendation, it is further recommended that the Plaintiffs pending motion for judgment on the pleadings be denied, while the Defendant's pending motion for summary judgment be deemed moot.[3] Finally, in light of Plaintiff s IFP status, it is recommended that the Defendant's motion for an award of fees and costs incurred due to Plaintiff s failure to attend her depositions as a further sanction in this case be denied.

         The parties are referred to the Notice Page attached hereto.

         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 ...


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