United States District Court, E.D. North Carolina, Eastern Division
MEMORANDUM & RECOMMENDATION
T. Numbers, II United States Magistrate Judge.
Gordon Barclift has abandoned his case. After filing his
Complaint in March 2017, Barclift neither served his initial
disclosures as required by the court's scheduling order,
nor responded to Defendant Sentara Albermarle Regional
Medical Center, LLC's (“Sentara”) discovery
requests, despite a court order requiring him to do so.
Sentara now asks that the court dismiss Barclift's
Complaint because of his failure to comply with the
court's order and his general failure to prosecute his
case. Because Barclift ignored many opportunities to appear
and to pursue his claim, despite several warnings that
failing to do so could result in the imposition of severe
sanctions, the undersigned recommends that the district court
dismiss Barclift's Complaint.
March 2017, Barclift sued Sentara, alleging racial
discrimination in the workplace in violation of Title VII.
Compl., D.E. 1. The court's scheduling order required
Barclift to serve his initial disclosures in late June 2017,
but he failed to do so. See Sept. 26, 2017 Order at
1, D.E. 19. Shortly thereafter, Sentara served Barclift with
its First Set of Interrogatories and Requests for Production
of Documents. See Ex. A, D.E. 16-1 & Ex. B, D.E.
16-2. Barclift did not respond to Sentara's discovery
requests. In the following months, Sentara wrote to Barclift
asking for him to respond, see Ex. C, D.E. 16-3, and
called him at least twice, see Sept. 26, 2017 Order
at 1. Barclift ignored all of Sentara's attempts at
communication. Id. In June and August 2017, Sentara
asked Barclift when he would be available to sit for a
deposition. Ex. C, D.E. 16-3 & Ex. D, D.E. 16-4. Barclift
August 2017, Sentara asked the court to require Barclift to
produce his initial disclosures and respond to its discovery
requests. Def.'s Mot. to Compel, D.E. 16. A month later,
after Barclift did not respond to the motion, the court
ordered Barclift to provide his initial disclosures and
discovery responses within 15 days and provide dates when he
would be available for a deposition. Sept. 26, 2017 Order.
The undersigned magistrate judge warned Barclift that
“his failure to comply with [the] Order may lead to the
imposition of sanctions, which may include dismissal of his
November 2017, Sentara asked the court to dismiss
Barclift's Complaint with prejudice because of his
failure to comply with the court's order. Def.'s Mot.
for Sanctions, D.E. 20. This court issued an order on
February 1, 2018, setting a hearing on Sentara's motion
for February 15, 2018, to give Barclift an opportunity to
appear and address his conduct. D.E. 23. Barclift failed to
appear at the hearing.
Federal Rules contain several provisions addressing how to
deal with parties who are unresponsive. See Fed. R.
Civ. P. 37 & 41. Although dismissal with prejudice is one
potential option, the Rules favor resolving cases on their
merits. See Island Creek Coal Co. v. Lake Shore,
Inc., 832 F.2d 274, 279 (4th Cir. 1987). Courts should
only exercise their discretion to dismiss an action
“with the greatest restraint and caution, and then only
to the extent necessary.” United States v. Shaffer
Equip. Co., 11 F.3d 450, 461 (4th Cir. 1993).
here dismissal is appropriate because Barclift's actions
suggest bad faith, he is personally responsible for his
conduct, Sentara has suffered prejudice, Barclift's
conduct requires deterrence, there has been a history of
delay, and no lesser sanction appears to be effective.
first argues that the court should sanction Barclift for
violating Rule 37. This rule explains that when a party
“fails to obey an order to provide or permit discovery
. . . the court where the action is pending may issue further
just orders . . . includ[ing] . . . dismissing the action or
proceeding in whole or in part . . . .” Fed.R.Civ.P.
37(b)(2)(A) & (v).
before sanctioning an unresponsive party under this
provision, the court “must consider” whether the
unresponsive party acted in bad faith, whether the requesting
party was prejudiced, whether there is a need to deter this
particular form of noncompliance, and whether a less drastic
alternative would be effective. Hillig v. C.I.R.,
916 F.2d 171, 174 (4th Cir. 1990). The purpose of this
balancing test is to reserve the “extreme
sanction” of dismissal for “the most
flagrant” cases “where the party's
noncompliance represents bad faith and callous disregard for
the authority of the district court and the Rules.”
Mut. Fed. Sav. & Loan Ass'n, 872 F.2d at 92.
this test, the first question is whether Barclift acted in
bad faith. In support of its motion for sanctions, Sentara
cited Rogers v. Hamilton, in which the pro
se plaintiff failed to make initial disclosures, respond
fully to interrogatories, or comply with the court's
order to produce the requested documents or face potential
dismissal. Although not specifically invoking the relevant
factors test, the court noted that the plaintiff's lack
of justification for its failure reeked of bad faith.
Rogers v. Hamilton, No. 1:04-CV-739, 2005 WL
3274410, at *1-2 (M.D. N.C. Dec. 2, 2005). Sentara argued
that Rogers is analogous to this case and that the
court should rule similarly.
undersigned agrees. Courts tend to find bad faith when the
plaintiff has ignored both the opposing party's requests
and the court's requests to cooperate, precisely what
happened here. Mut. Fed. Sav. & Loan Ass'n,
872 F.2d at 93 (upholding the lower court's finding of
bad faith because of the responding party's general
noncompliance and “haphazard compliance” with
discovery requests and court orders); Anderson v. Found.
for Advancement, Educ. & Emp't of Am. Indians,
133 F.3d 500, 504 (4th Cir. 1998) (finding bad faith when the
responding party “stonewalled on discovery from the
inception of the lawsuit.”); Green ...