Opinion
5:22-CV-361-M
01-10-2024
CHRISTINA ALEXANDRIA TAYLOR-LOPER, Plaintiff, v. SAM'S CLUB/WALMART ASSOCIATES, INC., Defendant.
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JR., UNITED STATES MAGISTRATE JUDGE.
This matter is before the court on Defendant's motion to compel, [DE-31], and motion for sanctions, including dismissal for failure to prosecute, pursuant to Fed.R.Civ.P. 41(b) and Local Civ. R. 7.1, E.D.N.C, [DE-33]. Plaintiff did not respond to either motion. On December 20, 2023, the court ordered Plaintiff to show cause in writing by no later than January 3,2024, why the court should not dismiss this case for failure to participate in discovery and failure to prosecute. [DE-38]. Plaintiff did not respond to the show cause order.
Defendant asserts Plaintiff has failed to comply with her discovery obligations, including failing to attend her properly noticed deposition. [DE-33] at 6-7. The court may sanction a party who fails to appear for a deposition after being served with proper notice. Fed.R.Civ.P. 37(d)(1)(A)(i). Among the available sanctions is dismissal with prejudice. Fed.R.Civ.P. 37(b)(2)(A)(v). The court may also dismiss an action on a defendant's motion “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order[.]” Fed.R.Civ.P. 41(b). “The legal standard for dismissals under Rule 37 is virtually the same as that for dismissals for failure to prosecute under Rule 41.” Carter v. Univ. of W Va. Sys., Bd. of Trustees, 23 F.3d 400 (4th Cir. 1994). The court must consider the following four factors before imposing the ultimate sanction of dismissal: “(1) the plaintiff's 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 than dismissal.” Id. “While the district court clearly has the authority to dismiss complaints,... this authority should be exercised with restraint and ‘ [a]gainst the power to prevent delays must be weighed the sound public policy of deciding cases on their merits.'” Id. (citations omitted).
Plaintiff's failure to participate in discovery, including the failure to appear at her deposition, is grounds for dismissal under both Rule 37(d) and Rule 41 (b). Plaintiff failed to attend her properly noticed deposition. See Dep. Notice [DE-33-1]; Spainhour Decl. [DE-33-2]. Plaintiff also failed to respond to Defendant's written discovery and motion to compel. Def.'s Mem. [DE-34] at 3; see also Mot. to Compel [DE-31]. Despite being given opportunities to do so, Plaintiff has provided no reason for failing to attend her deposition. Thus, Plaintiff bears full responsibility for her failure to appear. Plaintiff's refusal to participate in discovery has prejudiced Defendant by prolonging the resolution of this matter, depriving Defendant of information needed to defend against Plaintiff's claims, and causing Defendant to incur substantial costs of filing motions seeking Plaintiff's compliance and expending resources for a deposition that did not occur. See Newman v. Durham Hous. Auth., No. 1:22-CV-242, 2023 WL 2477514, at *2 (M.D. N.C. Mar. 13, 2023) (plaintiff's failure to participate in discovery prejudiced defendant where defendant bore the expenses associated with a worthless deposition and filing a motion and was deprived of discovery needed to defend the case); Bland v. Booth, No. 7:19-CV-63-BO, 2020 WL 2575556, at *2 (E.D. N.C. May 21, 2020) (finding plaintiff's non-compliance, including failing to attend a deposition, prejudiced defendants where the defendants' lawyers spent a year attempting to conduct discovery with an opposing party who showed little interest in seriously participating in his own case). Plaintiff appears to have no means to pay a monetary penalty given that she is proceeding in forma pauperis and the court finds that no less drastic sanction would be effective given Plaintiff's apparent abandonment of her case. See Jones v. Campbell Univ., No. 21-1921, 2023 WL 34172, at *1 (4th Cir. Jan. 4, 2023) (“There is a significant need to deter parties from unilaterally deciding not to attend a properly scheduled deposition.”), cert, denied, No. 22-1128, 2023 WL 6377878 (U.S. Oct. 2, 2023). Finally, Plaintiff was cautioned that a failure to respond to the show cause order would result in a recommendation that this case be dismissed. Accordingly, it is recommended that Plaintiff's case be dismissed with prejudice and the motion to compel be denied as moot.
Defendant also seeks its attorney's fees and expenses in bringing the motion for sanctions, but given Plaintiff's in forma pauperis status, it is recommended that the court deny that relief.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until January 24,2024 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b). Any response to objections shall be filed by within 14 days after service of the objections on the responding party.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).