Sanders v. Berkshire Properties et al

Filing 75

ORDER denying 70 Motion for Extension of Time; granting in part and denying in part 72 Motion for Sanctions. Signed by Magistrate Judge Timothy J. Sullivan on 12/3/2015 (c/m to plaintiff 12/4/15 cags, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
TIMOTHY J. SULLIVAN
UNITED STATES MAGISTRATE JUDGE
[e-mail]

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

December 3, 2015
LETTER TO PLAINTIFF AND COUNSEL
Re:

Hazel Sanders v. Enos Contractors, et al.
Case No. ELH-13-2590

Dear Ms. Sanders and Counsel:
This case was referred to me for the resolution of discovery disputes and related
scheduling matter. (ECF No. 55.) Two motions are pending before me: Plaintiff Hazel Sanders’
(“Sanders”) “Motion for Extension of Time to Comply With Order of Discovery” (“Motion for
Extension”) (ECF No. 70) and Defendant Tracy Richards’ (“Richards”) Motion for Sanctions
(ECF No. 72). Having considered the submissions of the parties, I find that a hearing is
unnecessary. See Loc. R. 105.6. For the reasons set forth below, Sanders’ Motion for Extension
of Time is DENIED and Richards’ Motion for Sanctions is GRANTED IN PART and
DENIED IN PART. As explained below, the Court will give Sanders one final opportunity to
respond to Richards’ discovery requests.
On April 16, 2015, the Court granted Richards’ motion to compel discovery, and directed
Sanders to respond to Richards’ interrogatories and document production requests by May 1,
2015. (ECF Nos. 50 & 56.) The Court cautioned Sanders that failure to comply with the order
could result in the imposition of sanctions listed in Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). (ECF No.
56 at 2.) According to the status report filed by Richards on November 6, 2015 (ECF No. 71 ¶ 1)
and Richards’ Motion for Sanctions (ECF No. 72 at 2), Sanders has not responded to the
interrogatories and document production requests.
On November 4, 2015, Sanders filed her Motion for Extension and requested a three
week extension to comply with the Court’s April 16, 2015 Order.1 (ECF No. 70 at 1.) In support
of her request, Sanders stated that she had “files dating back to 2011,” some of which were in a
storage unit, and that she had “never [gone] through discovery before.” (Id.)
Richards opposes Sanders’ Motion for Extension. (ECF No. 73.) Richards notes that
Sanders has had “ample time to comply with the April 16, 2015 Order” and has offered no
justification for her failure to respond to discovery. (Id.) On December 2, 2015, Sanders filed a
letter addressed to Judge Hollander dated November 24, 2015. (ECF No. 74.) The Court will
construe this letter as a reply to Richards’ opposition and as a response to Richards’ Motion for
Sanctions. In the letter, Sanders explains that she was confused about whether her Motion for
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The Court assumes that Sanders’ Motion for Extension seeks an extension of time
through November 25, 2015, which is three weeks from the date that her motion was filed.

Extension had already been denied by the Court, and that she has filed a complaint with
Maryland’s Attorney Grievance Commission against defense counsel. The letter does not explain
why she still has not complied with the Court’s April 16, 2015 Order.
Sanders has offered no legitimate explanation for her failure to respond to Richards’
interrogatories and document production requests. “Although pro se litigants are given liberal
treatment by courts, even pro se litigants are expected to comply with time requirements and
other procedural rules ‘without which effective judicial administration would be impossible.’”
Dancy v. Univ. of N. Carolina at Charlotte, No. 3:08–CV–166–RJC–DCK, 2009 WL 2424039,
at *2 (W.D.N.C. Aug. 3, 2009) (quoting Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989)).
Sanders brought this action against Richards, and she has the obligation to comply with the rules
that require her to provide complete and non-evasive answers to interrogatories, and complete
and non-evasive responses to document production requests. Her failure to do so will not be
excused.
District courts have the authority to dismiss cases under Fed. R. Civ. P. 37(b)(2)(A) when
a party fails to comply with a discovery order, as well as under Fed. R. Civ. P. 37(d) and 41(b) as
part of the courts’ “comprehensive arsenal of Federal Rules and statutes to protect themselves
from abuse.” Chambers v. NASCO, Inc., 501 U.S. 32, 62 (1991). Rule 37(b) provides that the
court may “dismiss[ ] the action or proceeding in whole or in part” if a party “fails to obey an
order to provide or permit discovery.” Fed. R. Civ. P. 37(b)(2)(A)(v). Likewise, Rule 37(d)
provides that the Court may order sanctions, including dismissal, if “a party, after being properly
served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve
its answers, objections, or written response.” Fed. R. Civ. P. 37(d)(1)(A)(ii), (d)(3). Further, Fed.
R. Civ. P. 41(b) provides that the court may dismiss an action “[i]f the plaintiff fails to prosecute
or to comply with . . . a court order.”
“Dismissal . . . is ordinarily reserved for the most egregious cases.” Sadler v. Dimensions
Health Corp., 178 F.R.D. 56, 59 (D. Md. 1998) (citing Dove v. Codesco, 569 F.2d 807, 810 (4th
Cir. 1978), in which the Court stated that dismissal with prejudice under Rule 41(b) was only for
“clear record of delay or contumacious conduct by the plaintiff”). Indeed, “only the most flagrant
case, where the party’s noncompliance represents bad faith and callous disregard for the
authority of the district court and the Rules, [should] result in the extreme sanction of dismissal
or judgment by default.” Mut. Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88,
92 (4th Cir. 1989). To that end, before ordering dismissal under Rule 37(b) or (d), the court
applies a four-factor test: “‘(1) whether the non-complying party acted in bad faith; (2) the
amount of prejudice that noncompliance caused the adversary; (3) the need for deterrence of the
particular sort of non-compliance; and (4) whether less drastic sanctions would have been
effective.’” Bethesda Softworks LLC v. Interplay Entm’t Corp., No. DKC–09–2357, 2011 WL
1559308, at *2 (D. Md. Apr. 25, 2011) (quoting Belk v. Charlotte Mecklenburg Bd. of Educ., 269
F.3d 305, 348 (4th Cir. 2001)).
Prior to dismissal under Rule 41(b), the court must consider four similar factors: “(1) the
plaintiff’s degree of personal responsibility; (2) the amount of prejudice caused the defendant;
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(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.” Hillig v. Comm’r of Internal Review,
916 F.2d 171, 174 (4th Cir. 1990). “[T]he Court will combine the two tests in determining if
dismissal is appropriate under Rules 37(d) and 41(b)” because the legal standards for dismissal
under both rules are “‘virtually the same.’” Taylor v. Fresh Fields Markets, Inc., No. CIV. A.
94–0055–C, 1996 WL 403787, at *2 (W.D. Va. June 27, 1996) (quoting Carter v. Univ. of W.
Va. Sys., 23 F.3d 400, 1994 WL 192031, at *2 (4th Cir. 1994)); see, e.g., Tabor v. E.J. Patterson,
Inc., No. Civ. A. 98–2438, 1999 WL 52144 (E.D. La. 1999) (analyzing facts under Fed. R. Civ.
P. 37(d) and 41(b) together and dismissing without prejudice pro se plaintiff’s claims where
plaintiff twice failed to appear for his scheduled deposition). The Court also considers whether
the party facing dismissal or a default judgment is aware of these possible sanctions. See Green
v. Chatillon & Sons, 188 F.R.D. 422, 424 (M.D.N.C. 1998) (dismissing case with prejudice and
noting that the plaintiff had “already been explicitly warned that her continued failure to provide
discovery could lead to such a sanction”); Sadler, 178 F.R.D. at 59-60 (noting that “district
courts must precede dismissal with an ‘explicit and clear’ threat to a party that failure to meet
certain conditions could result in dismissal of the party’s case with prejudice”).
Having considered these factors, the Court finds that sanctions less severe than dismissal
may be effective to secure Sanders’ response to the outstanding discovery requests. If, however,
Sanders does not provide complete, substantive, and non-evasive responses to the outstanding
interrogatories and document production requests by the date specified, the Court will
recommend to the presiding judge that this case be dismissed with prejudice. Accordingly,
Sanders’ Motion for Extension is DENIED. Richards’ Motion for Sanctions is GRANTED IN
PART and DENIED IN PART, as specified below.
On or before December 18, 2015, Sanders shall serve complete, substantive, and nonevasive responses to Richards’ outstanding interrogatories and document production requests.
Absent extraordinary cause, there will be no extension of this deadline. Sanders may not
withhold discovery on the basis of any objection or assertion of privilege. She has waived her
right to do so by failing to respond to the discovery requests as required by the federal rules and
this Court’s April 16, 2015 Order. See Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354,
356 (D. Md. 2008). In the event that Sanders fails to comply with this Order compelling the
production of discovery, Richards may file a renewed motion for sanctions, and the Court may
issue the following sanctions:
(i) directing that the matters embraced in the order or other designated facts be
taken as established for purposes of the action, as the prevailing party claims; (ii)
prohibiting the disobedient party from supporting or opposing designated claims
or defenses, or from introducing designated matters in evidence; (iii) striking
pleadings in whole or in part; (iv) staying further proceedings until the order is
obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering
a default judgment against the disobedient party; or (vii) treating as contempt of
court the failure to obey any order except an order to submit to a physical or
mental examination.
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Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). Sanders should understand this Order to be an “explicit and
clear” warning that her case stands to be dismissed if she does not comply. See Sadler, 178
F.R.D. at 59-60.
The Clerk of Court is directed to mail a copy of this Order to Sanders at the address on
file with the Court.
Despite the informal nature of this letter, it will constitute an Order of the Court and will
be docketed accordingly.
Very truly yours,

/s/
Timothy J. Sullivan
United States Magistrate Judge

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