United States District Court, E.D. North Carolina
W. FLANAGAN United States District Judge
matter comes before the court on defendant's motion for
sanctions and dismissal pursuant to Federal Rules of Civil
Procedure 37(b) and 41(b) (DE 60). The issues raised are ripe
for ruling. For the reasons that follow, defendant's
motion is granted.
proceeding pro se, initiated this action on May 14, 2018,
alleging race and national origin discrimination in violation
of Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq., and disability
discrimination in violation of the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§ 12111 et seq.. The court entered case management order
on October 22, 2018, and amended it on December 13, 2018. The
case management order requires that the parties exchange
initial disclosures by November 1, 2018, and respond to
interrogatories 30 days after service thereof. Likewise, the
Federal Rules provide that parties must respond to requests
for production of documents not later than 30 days after
being served. Fed.R.Civ.P. 34(b)(2)(A). Defendant served its
first set of interrogatories and first set of requests for
production of documents on October 24, 2018.
(“Discovery Requests” (DE 23-1, 23-2)).
November 6, 2018, and December 3, 2018, defense counsel sent
plaintiff letters requesting plaintiff provide his Rule 26(a)
disclosures and respond to defendant's discovery
requests. Plaintiff did not respond to either of defense
receiving no response, defendant filed motion to compel
plaintiff to file its initial disclosures, as well as respond
to its discovery requests. On January 17, 2019, the court
granted defendant's motion in part, requiring that
plaintiff serve responses to defendant's discovery
requests and serve initial disclosures not later than
February 5, 2019. The court warned plaintiff that failure to
comply with the court's order may result in dismissal of
the action in its entirety.
meantime, plaintiff commenced a second action against
defendant on May 18, 2018 in the United States District Court
for the Northern District of Alabama. Plaintiff alleges
interference with and retaliation against exercise of his
rights under the Family Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601, et seq.;
discrimination on the basis of disability in violation of the
ADA; and retaliation on the basis of race in violation of 42
U.S.C. § 1981. The case was stayed by the district court
on July 31, 2018. Subsequently, the case was transferred from
the Northern District of Alabama on February 8, 2019.
court completely consolidated plaintiff's second case
with the first case on March 21, 2019, and allowed the
parties to propose amendments to the court's case
management order. Neither party proposed any amendment,
leaving the court's case management order in effect.
defendant filed the instant motion for sanctions and
dismissal. Defendant represents that plaintiff ignored the
court's January 17, 2019, order to produce required
discovery. Out of respect for the fact that plaintiff is
proceeding pro se, and mindful that a second case had
recently been consolidated, the court gave plaintiff another
chance to comply with his discovery obligations. The court
again ordered plaintiff to produce initial disclosures and
respond to defendant's first set of interrogatories and
first set of requests for production of documents. The court
directed plaintiff to file a sworn statement attesting to
service of the required discovery on defendant by May 29,
2019. Finally, the court again warned plaintiff that failure
to comply with the court's order will result in dismissal
of the consolidated action in its entirety.
29, 2019, plaintiff untimely filed response to
defendant's motion for sanctions. In plaintiff's response,
he did not attest to service of required discovery on
defendant as ordered by the court. Instead, plaintiff
demanded defendant produce discovery before he proceed any
Federal Rules of Civil Procedure allow a court to impose
sanctions, up to and including dismissal, when a party fails
to comply with discovery ordered by the court. Fed.R.Civ.P.
37(b). Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir.
1994) (noting that even pro se litigants are “subject
to the time requirements and respect for court orders without
which effective judicial administration would be
impossible”). Before dismissing a claim, courts should
warn the plaintiff about the potential for dismissal for
failure to comply with its order. See Hathcock v.
Navistar Int'l Transp. Corp., 53 F.3d 36, 40 (4th
Cir. 1995). In determining whether to dismiss a claim for
failure to comply with a discovery order, a court considers:
(1) whether the noncomplying party acted in bad faith; (2)
the amount of prejudice his noncompliance caused his
adversary, which necessarily includes an inquiry into the
materiality of the evidence he failed to produce; (3) the
need for deterrence of the particular sort of noncompliance;
and (4) the effectiveness of less drastic sanctions.
Mutual Fed. Sav. & Loan v. Richards &
Assocs., 872 F.2d 88, 92 (4th Cir. 1989). The failure to
respond to interrogatories is sufficient to sanction a party
with dismissal. National Hockey League v. Metropolitan