United States District Court, D. South Carolina, Charleston Division
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. 93)
recommending that the Court deny Defendant Southeastern
Grocers LLC's Motion to Dismiss for failure to comply
with discovery requirements (Dkt. No. 85). For the reasons
set forth below, the Court adopts the R & R as the order
of the Court, denies Defendant's motion at this time,
orders Plaintiff to respond to Defendant's First Request
for Document Production, and extends the discovery and
dispositive Motion deadlines.
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 proceedingpro se and in
forma pauperis. (Dkt. No. 19.) On July 15, 2019, this
Court adopted a prior R & R from the Magistrate Judge and
granted in part a motion for sanctions against Plaintiff for
repeated failures to comply with discovery requirements.
(Dkt. No. 76.) Plaintiff complied with the sanctions order,
and remitted payment of $250 to Defendant. (Dkt. No. 80.)
closed on September 23, 2019. (Dkt. No. 81.) Shortly
thereafter, Defendant again moved on October 2, 2019 for
dismissal and sanctions, arguing that Plaintiff continued to
fail to comply with discovery obligations. (Dkt. No. 85.) The
Magistrate Judge, reviewing the record and outstanding
discovery in detail, found that while Plaintiff had failed to
comply with certain requirements, such as fully responding to
Defendant's first request for document productions,
significant progress nonetheless had been made since the
Court's prior award of sanctions, such as Plaintiff
appearing for his deposition and providing certain discovery
materials. (Dkt. No. 93.) The Magistrate Judge therefore
issued an R & R recommending that the Court deny
Defendant's Motion to Dismiss, extend relevant deadlines,
and order Plaintiff to fully respond to Defendant's first
request for document productions within fourteen days.
(Id.) Notably, the Magistrate Judge also included a
stern warning for Plaintiff that any continued failure to
comply with discovery obligations or order of this Court may
result in dismissal of his case with prejudice. (Id.
at 10 - 11.) No party has 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). No
Party filed objections and the R & R is reviewed for
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 effectiveness of sanctions less drastic
Hillig v. Comm'r
916 F.2d 171, 174 (4th Cir.
1990). The standard for Rules 37 and 41 is "virtually
the same." Carter v. Univ. of W. Virginia Sys., Bd.
of Trustees,23 ...