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Wilson v. Fairfield Inn Suites-Marriott, Rdu

United States District Court, M.D. North Carolina

October 20, 2017

NATHAN E. WILSON, Plaintiff,


          L. Patrick Auld United States Magistrate Judge

         This case comes before the undersigned United States Magistrate Judge for a recommendation on “Defendant's Motion to Dismiss Plaintiff's Complaint for Failure to Participate in Discovery and Failure to Prosecute and Motion to Stay Dispositive Motion Deadline” (Docket Entry 53) (the “Dismissal Motion”).[1] For the reasons that follow, the Court should grant the dismissal request and should deny as moot the stay request.


         In July 2016, Nathan E. Wilson (the “Plaintiff”) initiated this action by filing (i) a Complaint (Docket Entry 2) against Fairfield Inn Suites - Marriot, RDU (the “Defendant”), (ii) an application to proceed in forma pauperis (Docket Entry 1) (the “IFP Application”), and (iii) a motion to appoint counsel (Docket Entry 3) (the “First Appointment Motion”).[2] Concluding that, “[i]n its present form, [the] Complaint does not state a claim, but instead merely identifies a cause of action and directs the Court to some attachments, none of which set forth a coherent set of factual allegations that plausibly could support the identified cause of action, ” the Court (per the undersigned) entered an order deferring ruling on the IFP Application and “affording Plaintiff an opportunity to submit an amended complaint on or before 08/08/2016.” (Text Order dated July 15, 2016.) In August 2016, Plaintiff filed an amended complaint (Docket Entry 7), and the Court (per the undersigned) granted the IFP Application (see Docket Entry 8 at 1).

         Because Plaintiff maintained that “[he was] NOT qualified to [a]gree to any discovery schedule until the [C]ourt rule[d] on [his] motion for court appointed counsel” (Docket Entry 19 at 1 (emphasis in original)), the case proceeded to an Initial Pretrial Conference on October 31, 2016, at which Plaintiff asked “the [C]ourt to rule on [his] request for court appointed counsel in the interest of adequ[a]te preparation for discovery and tr[ia]l” (id.). (See also Minute Entry dated Oct. 31, 2016.) Finding that “Plaintiff has not established the requisite exceptional circumstances warranting [such appointment], ” the Court (per the undersigned) denied the First Appointment Motion (First Text Order dated Oct. 31, 2016), and issued a case-management order (Second Text Order dated Oct. 31, 2016 (the “Scheduling Order”)), which adopted “Defendant's Proposed Discovery Plan” (Docket Entry 18 at 1),

with the following modifications, as agreed to and/or ordered by the Court after argument at the hearing held this day: 1) the parties shall serve Initial Disclosures required by Federal Rule of Civil Procedure 26(a)(1) by 11/30/2016; . . . and 3) the Court will not order mediation at this time, but the parties shall file a Joint Status Report setting out their shared or individual views about the advisability of mediation and/or the identity of an appropriate mediator by 11/30/2016.

         (Second Text Order dated Oct. 31, 2016.) The Scheduling Order thus established a deadline for completing discovery of April 30, 2017. (See Docket Entry 18 at 2; see also Docket Entry dated Nov. 1, 2016.)

         Pursuant to the Scheduling Order, Defendant filed a mediation status report (Docket Entry 20 (the “Defendant's Report”)), which detailed developments in the case following the Initial Pretrial Conference, including that “Plaintiff ha[d] since filed an ‘Informal Brief' with the Fourth Circuit Court of Appeals concerning the denial of his request for appointed counsel” (id. at 2). Defendant's Report also attached correspondence from Plaintiff to Defendant's counsel dated November 14, 2016, in which Plaintiff expressed reservations regarding the cost of mediation (Docket Entry 20-1 (the “November Letter”) at 2-3) and stated that “[he was] continuing to consider compliance with the thirty day time line for a list of witnesses and documents to support [his] claims” (id. at 3). Given these developments, “Defendant request[ed] that the Court excuse the parties from participating in mediation.” (Docket Entry 20 at 2.) Plaintiff filed an objection to Defendant's request (see Docket Entry 22 at 1-2), in connection with which he submitted a copy of his Informal Brief (see id. at 4 (containing certificates of service for Plaintiff's “[I]nformal [B]rief to the Fourth Circuit regarding [his] motion for court appointed counsel denied October 31, 2016, ” and “‘Objection' to Defense Motion, Report to Be ‘Excused' from Mediation” (emphasis in original)); see also Docket Entry 23 at 2-3, Docket Entry 23-3 at 1).[3] The Clerk's Office construed Plaintiff's submission of the Informal Brief as a notice of appeal from the order denying the First Appointment Motion. (See Docket Entry dated Dec. 29, 2016.)

         On January 17, 2017, Plaintiff submitted a motion for appointment of counsel and extension of time to respond to Defendant's discovery requests. (Docket Entry 26 (the “Second Appointment Motion”) at 1.) As grounds for appointment of counsel, the Second Appointment Motion asserted that, “[u]ntil such time as court appointed counsel is provided[, ] Plaintiff does not have the experience, education[, ] or economic ability to respond to these [discovery] requests in a manner that does not compromise this pro se Plaintiff.” (Id.) On January 27, 2017, the Court (per the undersigned) denied the Second Appointment Order, ruling, inter alia, that:

To the extent Plaintiff seeks an order indefinitely extending his obligation to respond to pending (or future) discovery requests until the Court appoints him counsel, the Court denies that request, but without prejudice to Plaintiff presenting a future motion requesting a finite (reasonable) amount of additional time to respond to discovery requests. . . . To the extent Plaintiff seeks an order appointing counsel for him based on the same rationale the Court thoroughly considered and addressed previously, the Court denies relief, but without prejudice to Plaintiff presenting a future motion raising any new grounds that would warrant appointment of counsel.

(Text Order dated Jan. 27, 2017.)

         On February 24, 2017, Plaintiff submitted another request for appointment of counsel and extension of his discovery deadlines. (See Docket Entry 31 (the “Third Appointment Motion”) at 3.) In the Third Appointment Motion, “pro se Plaintiff . . . respectfully request[ed] 180 days from this date to respond to initial discovery requests and serve initial discovery requests to Defendant in preparation for trial.” (Id. at 1.) In support of that request, Plaintiff asserted that “[t]he definitive time-line . . . . allows the Court and referral to the Fourth Circuit to rule on Plaintiff's request for court appointed counsel.” (Id. (emphasis in original).) “Plaintiff further request[ed] court appointed counsel for preparation of discovery and trial. Defendant has demanded a deposition of the Plaintiff by April 2017. In accordance with an original trial schedule set October 31, 2016, this schedule must be reset based on a calendar for trial established for after January 2018 at a time and place to be yet determined.” (Id.)[4] Moreover, “Plaintiff object[ed] to this deposition demand until court appointed counsel is provided for preparation that does not compromise the case of Plaintiff due to difficulties with disability, inexperience[, ] and education.” (Id.) Finally, Plaintiff maintained that “[t]he only way to prepare for this E.E.O.C. action, discovery, deposition[, ] and trial is with court appointed counsel.” (Id. at 2 (emphasis in original).) “In summary, [Plaintiff] respectfully request[ed] . . . a 180 day time-frame [be] allowed for discovery in this matter and court appointment of counsel” as well as “[f]urther delay of Defendant['s] demand of depositions until further ruling on this motion and further ruling on ‘Informal Brief' to the Fourth Circuit . . . filed February 6, 2017.” (Id. at 3.)

         The Court (per the undersigned) denied the Third Appointment Motion, explaining that the requested extension would delay completion of summary judgment briefing until after the scheduled trial date. (See Docket Entry 34 (the “Appointment Order”) at 3.)

         The Appointment Order further explained that the grounds upon which Plaintiff sought the extension - “‘allow[ing] the Court and . . . the Fourth Circuit to rule on Plaintiff's request for court appointed counsel'” (id. (ellipsis in original)) - lacked merit. In particular, the Appointment Order observed that Plaintiff cannot “obtain interlocutory review of the counsel appointment issue in the Fourth Circuit” (id. (collecting cases))[5] and that the Third Appointment Motion failed to “show exceptional circumstances entitling Plaintiff to appointment of counsel” (id. at 4; see also id. at 4-5 (analyzing proffered grounds for appointment)).

         In response to that denial, Plaintiff submitted a motion requesting “Court Supervision of [his] Deposition.” (Docket Entry 35 at 1.) In relevant part, that motion states:

Plaintiff has submitted that on October 31, 2016[, ] the [C]ourt extended discrimination under Color of Law in not conducting a requisite examination of extenuating circumstances in accordance with the A.D.A. [i]n the denial of court appointed counsel to Plaintiff. Court supervision and monitoring of the Defendant Demand for Deposition creates further opportunity to conduct a requisite examination for extenuating circumstances and mitigate the extension of discrimination concerns of Plaintiff.

(Id. (emphasis in original).) The Court (per the undersigned) promptly denied Plaintiff's deposition supervision request. ...

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