United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on the Report and Recommendation
("R & R") of the Magistrate Judge (Dkt. No. 74)
recommending that the Court grant in part Defendant
Southeastern Grocers, LLC's ("Southeastern")
motion for sanctions (Dkt. No. 66) and impose monetary
sanctions and, if the sanctions are not paid, dismiss the
case with prejudice. For the reasons set forth below, the
Court adopts the R & R and grants in part Defendant
filed this employment action on April 16, 2018, alleging that
his former employer, Defendant Southeastern Grocers LLC,
unlawfully subjected him to unequal terms of employment and
terminated him because of race in violation of Title VII of
the Civil Rights Act of 1964 ("Title VII"). (Dkt.
No. I.) Plaintiff is proceeding pro se
and in forma pauperis. (Dkt. No. 19.) Nonetheless,
Plaintiff has engaged in repeated failures to comply with
discovery requirements, deadlines and court orders over the
course of approximately five months. In brief, Plaintiff
failed to respond to Defendant's initial set of discovery
requests and failed to respond to a Motion to Compel. When
the Magistrate Judge ultimately ordered that Plaintiff
respond to Defendant's discovery requests by April 18,
2019, warning that failure to do so could result in dismissal
of the action, the Plaintiff requested an extension, which
the Court granted to May 22, 2019. (Dkt. No. 53, 56.)
Nonetheless, Plaintiff failed to respond to the document
requests by May 22, 2019 and did not respond to any email
communication from Defendant's counsel. The Magistrate
Judge also set a status conference for May 1, 2019, which
Plaintiff failed to appear for.
filed this motion for sanctions on June 4, 2019. (Dkt. No.
66.) Later that same day, Plaintiff filed a "Response to
Interrogatory" with the Court. (Dkt. No. 68.) In
addition to there being no indication that Plaintiff s
response had been served on Defendant, the response only
responded to the first interrogatory, leaving unproduced
responses to Defendant's other fifteen interrogatories
and multiple document requests. Defendant ultimately
cancelled Plaintiffs deposition, which had been scheduled for
June 11, 2019, because, as Defendant contends, it would be a
waste of time without discovery responses. (Dkt. No. 73 at
5.) Plaintiff responded in opposition to the motion for
sanctions, arguing that he had not received prior discovery
requests from Defendant as they had been served via FedEx,
that he has since complied with all requests as needed,
including providing his phone number, email address and
responses to interrogatories. (Dkt. No. 72.) However, the
majority of discovery requests seemingly remain outstanding.
19, 2019, the Magistrate Judge issued an R & R, granting
in part Defendant's motion for sanctions given Plaintiffs
repeated failure to comply with discovery duties and orders
of the court. (Dkt. No. 74.) The Magistrate Judge recommended
a monetary penalty of $250.00 and, if unpaid by an
appropriate deadline, dismissal of the case with prejudice.
Plaintiff has not filed objections.
Report and Recommendation
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261, 270
- 71 (1976). This Court is charged with making a de
novo determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). In
the absence of any specific objections, "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." See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Plaintiff did not file objections and therefore the R & R
is reviewed for clear error.
37 and 41 of the Federal Rules of Civil Procedure are part of
a court's "comprehensive arsenal of Federal Rules
and statutes to protect themselves from abuse."
LaFleur v. Dollar Tree Stores, Inc., No.
2:12-CV-00363, 2014 WL 37662, at *3 (E.D. Va. Jan. 3, 2014)
citing Chambers v. NASCO, Inc., 501 U.S. 32, 62
(1991). Under Rule 37, a court must determine:
(1) whether the non-complying party acted in bad faith, (2)
the amount of prejudice that noncompliance caused the
adversary, (3) the need for deterrence of the particular sort
of non-compliance, and (4) whether less drastic sanctions
would have been effective.
Anderson v. Found, for Advancement, Educ. &
Employment of Am. Indians, 155 F.3d 500, 504 (4th Cir.
1998). A court must apply a similar four-part test when
determining whether to dismiss under Rule 41:
(1) the plaintiffs degree of personal responsibility; (2) the
amount of prejudice caused the defendant; (3) the presence of
a drawn out history of deliberately proceeding in a dilatory
fashion; and (4) the ...