Fryer v. Southeastern Career Apparel(MAG+)

Filing 35

MEMORANDUM OPINION AND ORDER directing that plaintiff's 27 objection to the 26 REPORT AND RECOMMENDATION of the Magistrate Judge is SUSTAINED, and this case is returned to the assigned Magistrate Judge for all further pretrial proceedings and entry of any reports and recommendations as may be appropriate, as further set out in order. Signed by Honorable Judge Mark E. Fuller on 3/10/14. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARY LINDA FRYER,

)
)
Plaintiff,
)
)
v.
)
CASE NO.: 1:13-cv-545-MEF
)
SOUTHEASTERN CAREER
)
APPAREL,
)
)
Defendant.
)
)
************************************************************************
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MARY LINDA FRYER,
)
)
Plaintiff,
)
)
v.
)
CASE NO.: 1:13-cv-683-MEF
)
SOUTHEASTERN CAREER
)
APPAREL,
)
)
Defendant.
)
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This is an employment discrimination case brought by Plaintiff Mary Linda Fryer
(“Plaintiff” or “Fryer”), acting pro se, against her employer, Southeastern Career Apparel
(“Defendant” or “Southeastern”). Now before the Court is Magistrate Judge Terry F.
Moorer’s Report and Recommendation (Doc. #26) that this action be dismissed without
prejudice for Plaintiff’s failure to prosecute and to comply with the Court’s discovery orders,

Plaintiff’s objection to the Report and Recommendation (Doc. #27), and Southeastern’s
Submission in Support of Recommendation and Report of Magistrate Judge (Doc. #34).
II. FACTS AND PROCEDURAL HISTORY
This case began less than a year ago as two actions that were subsequently
consolidated. (Docs. #1, 17.) The case was referred to Judge Moorer for all pretrial
proceedings and entry of any orders and recommendation as may be appropriate. (Doc. #3.)
Judge Moorer originally set the discovery deadline as November 25, 2013, but extended it
to December 30, 2013, upon Plaintiff’s request. (Docs. #18, 19.)
Southeastern served Plaintiff with two sets of discovery requests. The first set was
served on Plaintiff on October 1, 2013, and the second set was served on Plaintiff on
November 1, 2013. Responses were due thirty days later under the Federal Rules of Civil
Procedure.
By November 7, 2013, Plaintiff had not responded to Southeastern’s first discovery
requests. Southeastern filed a Motion to Compel, which Judge Moorer granted that same
day. (Docs. #20, 21.) In the November 7, 2013 Order, Judge Moorer ordered Plaintiff to
provide complete responses to Southeastern’s first set of discovery requests no later than
November 18, 2013, and to Southeastern’s second set of discovery requests no later than
December 2, 2013. (Doc. #21.) Judge Moorer further warned Plaintiff that “if she fails to
respond as required by this order, the court will treat her failure as an abandonment
of the claims set forth in the complaint, as amended, and as a failure to prosecute this
action and the undersigned will recommend that this case be dismissed for such

failure.” (Doc. #21.)
By December 5, 2013, Southeastern still had not received Plaintiff’s discovery
responses. As a result, on December 5, 2013, Southeastern filed a Motion for Order to Show
Cause, wherein it asked the Court to order Plaintiff to show cause why the case should not
be dismissed pursuant to Rule 37 for her failure to comply with the Court’s discovery order.
(Doc. #22.) On December 12, 2013, Judge Moorer granted Southeastern’s Motion for a
Show Cause Order, wherein the Court advised Plaintiff that it “is inclined to recommend
dismissal of this action for Plaintiff’s failure to prosecute this case.” (Doc. #23.)
On December 13, 2013, Plaintiff filed a response to the Show Cause Order, wherein
she explained that she sent her discovery response to Southeastern on December 9, 2013, and
that she had been hospitalized on November 26, 2013 (after her first set of responses were
due per Court order, but before her second set of responses were due) until December 5,
2013. (Doc. #24.) Plaintiff attached a doctor’s note to her response showing that she was
hospitalized from November 26 to December 5, 2013. On December 18, 2013, Southeastern
responded to Fryer’s response, claiming that Plaintiff’s responses were late, despite the
Court’s warnings, and wholly incomplete. (Doc. #25.) Southeastern claims that it has been
prejudiced by Plaintiff’s actions in that it is unprepared to take her deposition based on the
discovery responses she provided and that her lawsuit should be dismissed as a result.
A day later, on December 19, 2013, Judge Moorer entered a Report and
Recommendation wherein he recommended dismissal of Plaintiff’s action without prejudice
for failure to prosecute and to comply with discovery orders. Judge Moorer noted that

Plaintiff failed to respond to the first set of discovery requests, which were due before she
was hospitalized, and although she was hospitalized when her responses to the second set of
discovery requests came due, she never informed the Court of this impediment or requested
an extension, as she had done previously in the case. Based on this, and the inability of
Southeastern to defend the case, Judge Moorer recommended dismissal of Plaintiff’s action.
(Doc. #26.)
On January 6, 2014, Plaintiff objected to Judge Moorer’s Report and
Recommendation, wherein she explained her hospitalization and her attempts at serving her
discovery responses, and requested that her lawsuit not be dismissed. This Court held a
hearing on Plaintiff’s objection on March 6, 2014. Both Plaintiff and Southeastern were
present at the hearing and presented arguments to the Court.
III. DISCUSSION
There are consequences for failing to comply with the orders of this Court, whether
a party is acting pro se or represented by the most experienced counsel. See United States
v. Varnado, No. 11-10813, 2011 WL 5248163, at *2 (11th Cir. Nov. 3, 2011) (noting that pro
se litigants are subject to sanctions for misconduct and for failure to comply with court
orders); Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (“If a pro se litigant ignores
a discovery order, he is and should be subject to sanctions like any other litigant.”). These
consequences include, among other things, sanctions and even dismissal of an action. See
Fed. R. Civ. P. 37. Indeed, this Court fully supports the use of sanctions under Rule 37, but
only in appropriate circumstances.
The sanction of dismissal is an extreme remedy that is appropriate where a party’s

conduct amounts to “‘flagrant disregard and willful disobedience’ of the court’s discovery
orders.” Hashemi v. Campaigner Publications Inc., 737 F.2d 1538, 1539 (11th Cir. 1984)
(quoting Phillips v. Ins. Co. of N. Am., 633 F.2d 1165, 1167 (5th Cir. 1981)). The Court
finds that Plaintiff did not engage is such conduct here. Plaintiff submitted evidence with her
objection to the Report and Recommendation demonstrating that she was hospitalized from
November 26 to December 5, 2013 for a “nervous breakdown,” during which time at least
one set of her discovery responses were due. Plaintiff further represented to this Court at the
March 6, 2014 hearing that she was having issues and experiencing symptoms that
culminated in her nervous breakdown before her hospitalization, that she informed
Southeastern of her medical issues, and that she submitted her discovery responses shortly
after she was released from the hospital.
In short, the Court is satisfied that Plaintiff’s failure to timely respond to discovery
requests was not the result of her flagrant or willful disregard of Judge Moorer’s discovery
orders, but because of her medical issues, which this Court considers excusable neglect.
However, Plaintiff is cautioned that any further failures by her to respond to any orders
of this Court in a timely and complete fashion will not be permitted. If Plaintiff engages
in such action at any future point in this litigation, a report and commendation by the
Magistrate Judge to dismiss this action with prejudice as a result will be well-taken.
IV. CONCLUSION
Accordingly, it is hereby ORDERED that Plaintiff’s Objection to the Report and
Recommendation of the Magistrate Judge (Doc. #27) is SUSTAINED, and this case is

returned to the assigned Magistrate Judge for all further pretrial proceedings and entry of any
reports and recommendations as may be appropriate.
DONE this the 10th day of March, 2014.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE