Brooks v. Dish Network, LLC

Filing 21

OPINION AND ORDER adopting Magistrate Judge Justin S. Anand's Final Report and Recommendation 19 , granting Defendant's Motion for Sanctions 16 and dismissing action with prejudice. Signed by Judge William S. Duffey, Jr on 10/2/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KENNETH BROOKS
Plaintiff,
v.

1:17-cv-630-WSD

DISH NETWORK, LLC,
Defendant.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Justin S. Anand’s Final
Report and Recommendation [19] (“Final R&R”) recommending granting
Defendant Dish Network, LLC’s (“Defendant”) Motion for Sanctions (the
“Motion”) [16] and dismissing the action with prejudice for want of prosecution.1
No objections to the Final R&R were filed.
I.

BACKGROUND
On February 17, 2017, Defendant removed the Cobb County action to the

U.S. District Court for the Northern District of Georgia [1]. On July 14, 2017,
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As part of his Final R&R, the Magistrate Judge also ordered that counsel for
Plaintiff, Anthony Eugene Cheatham, pay attorney’s fees to Defendant’s counsel,
Sean E. Boyd, in the amount of $1419.00 within thirty (30) days of the date of the
Final R&R. ([19] at 7).

with the expiration of the discovery period approaching, Defendant wrote a letter
to the Court describing Plaintiff’s failure to timely respond to discovery requests or
participate in a joint conference call with the Magistrate Judge as required by a the
Court’s Scheduling Order [8]. On July 21, 2017, the parties participated in a
teleconference regarding the matter. During the conference call, Plaintiff’s counsel
acknowledged that he failed to produce timely responses to the Defendant’s
discovery requests and agreed to supplement Plaintiff’s discovery responses within
ten days. ([19] at 3). The Magistrate Judge extended discovery through September
1, 2017. (Id.).
On August 3, 2017, Defendant filed the Motion, stating that Plaintiff failed
to provide required discovery responses. Defendant seeks sanctions against
Plaintiff “up to and including dismissing the action with prejudice.” ([16.1] at 7).
Plaintiff did not file a response to the Motion. On August 23, 2017, the Magistrate
Judge entered an Order [17] (the “August 23rd Order”) stating that,
notwithstanding Plaintiff’s failure to respond to the Motion for Sanctions, “[t]he
question that the Court will allow Plaintiff one more chance to address, in person,
is whether the harsh relief of dismissal is warranted.” ([17] at 2). The Magistrate
Judge ordered the parties to appear for a hearing on August 30, 2017, and advised
Plaintiff that he would be required to show cause why the action should not be

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dismissed on the basis of discovery violations. (Id.). Plaintiff’s counsel failed to
appear at the hearing.
On August 31, 2017, the Magistrate Judge issued his Final R&R,
recommending granting Defendant’s Motion for Sanctions and dismissing the
action with prejudice. No objections to the Final R&R were filed.
II.

DISCUSSION
A.

Legal Standard

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1);
Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). A district judge “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). With respect to those findings and
recommendations to which objections have not been asserted, the Court must
conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984). Where, as here,
Plaintiff does not file objections to the Final R&R, the Court reviews it for plain
error.

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B.

Analysis

Rule 37 of the Federal Rules of Civil Procedure provides that dismissal may
be an appropriate sanction where a party fails to comply with a court order
regarding discovery. See Fed. R. Civ. P. 37(b)(2)(A)(v); see also N.D. Ga. L.R.
41.3(A)(2) (“The court may, with or without notice to the parties, dismiss a civil
case for want of prosecution if . . . [a] plaintiff . . . shall, after notice, . . . fail or
refuse to obey a lawful order of the court in the case.”). Rule 41(b) of the Federal
Rules of Civil Procedure also provides that “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may move to dismiss the
action . . . . Unless the dismissal or order states otherwise, a dismissal under this
subdivision (b) . . . operates as an adjudication on the merits.” Fed. R. Civ. P.
41(b).
The Magistrate Judge found that “[b]y failing to participate in discovery by
providing complete and timely responses to discovery requests, Plaintiff has
prevented Defendant from obtaining the discovery that it is entitled to . . . and []
has prevented this case from proceeding to trial.” ([19] at 5). The Magistrate
Judge noted that “[o]rdinarily[] the Court would not recommend the imposition of
the harsh sanction of dismissal for a single discovery violation,” but, “[u]nder the
circumstances, . . . Plaintiff has demonstrated that a less severe sanction would not

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be sufficient to compel the Plaintiff to comply with his obligations under the
Federal Rules of Civil Procedure to produce timely discovery responses.” (Id. at
6). The Court finds no plain error in the Magistrate Judge’s determination.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Justin S. Anand’s Final

Report and Recommendation [19] is ADOPTED.
IT IS FURTHER ORDERED that Defendant’s Motion for Sanctions [16]
is GRANTED.
IT IS FURTHER ORDERED that the action is DISMISSED WITH
PREJUDICE.
SO ORDERED this 2nd day of October, 2017.

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