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Barclift v. Sentara Sentara Albemarle Regional Medical Center, LLC

United States District Court, E.D. North Carolina, Eastern Division

March 20, 2018

Gordon Barclift, Jr., Plaintiff,
Sentara Sentara Regional Medical Center, LLC, Defendant.


          Robert T. Numbers, II United States Magistrate Judge.

         Plaintiff 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.

         I. Factual Background

         In 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 never responded.

         In 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 complaint.” Id.

         In late 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.

         II. Analysis

         The 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).

         But 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.

         A. Rule 37

         Sentara 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).

         But 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.

         Under 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.

         The 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 ...

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