Pinkney v. Prince George's County, Maryland et al
MEMORANDUM OPINION AND ORDER dismissing all of Plaintiff's claims against Defendants; directing Clerk to CLOSE the case. Signed by Magistrate Judge William Connelly on 09/24/2014. (nk, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PO THIGPEN, et al.
Civil Action No. WGC-12-2062
MEMORANDUM OPINION & ORDER
On April 19, 2012 Plaintiff filed a complaint in the Circuit Court for Prince George’s
County, Maryland, asserting violations of the U.S. Constitution, the Maryland Constitution and
tort claims stemming from an alleged assault, battery, false imprisonment and false arrest by
Prince George’s County Police Department police officers on April 19, 2009. See ECF No. 2.
Defendants removed the action to this court on July 11, 2012. See ECF Nos. 1, 5. This court
issued a Scheduling Order on November 13, 2013, see ECF No. 30, with discovery closing on
March 28, 2014. At the request of the parties, discovery was extended an additional two months
or until May 28, 2014. See ECF Nos. 31-32.
On June 3, 2014 counsel for Defendants filed a joint status report.
On this week, Defendants will file a motion for sanctions due to
the Plaintiff’s failure to appear at her deposition properly noticed
for May 8, 2014, as well as her failure to supply any written
discovery responses. In that motion, Defendant[s] will request
dismissal of the Plaintiff’s claims as an appropriate sanction. On
June 3, 2014 at approximately 11:49 a.m., Plaintiff’s counsel
represented that he will not oppose the motion for sanctions and
ECF No. 33 at 1. Defendants filed their motion for sanctions on June 16, 2014. See ECF No. 35.
Plaintiff did not file response.
In the Order of July 25, 2014 this court granted Defendants’ motion for sanctions. See
ECF No. 38. The Order of June 26, 2014 (ECF No. 37), whereby the court extended the
dispositive motions deadline to July 28, 2014, was vacated. ECF No. 38 ¶ 9. The court directed
Plaintiff to serve Defendants with her answers to interrogatories and responses to requests for
production of documents not later than August 12, 2014. Id. ¶ 7. By August 15, 2014 the court
directed Defendants to notify the court whether they have received Plaintiff’s discovery
responses. “If Plaintiff fails to serve discovery responses as ordered supra, the Court will
dismiss this action and direct the Clerk of Court to close the case[.]” Id. ¶ 8.
On August 25, 2014 Defendants filed correspondence about Plaintiff’s discovery failure.
I am writing to inform you that Plaintiff has not supplied responses
to Defendants’ written discovery requests. These requests were
initially served upon the Plaintiff on November 14, 2013. In
accordance with your Order of July 25, 2014 [ECF #38],
Defendants request that this matter now be dismissed.
ECF No. 39 (Letter from Whitted, Esq. to Judge Connelly of 8/25/14).
Plaintiff has not
responded to this correspondence. The court now considers Defendants’ request. No hearing is
deemed necessary. See Local Rule 105.6 (D. Md. 2014).
STANDARD OF REVIEW
District courts have the authority to dismiss cases under Federal Rule of Civil Procedure
(“Rule”) 37(b)(2)(A) when a party fails to comply with a discovery order, as well as under Rules
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) (Kennedy,
J., dissenting). 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, Rule 41(b) provides that the court may dismiss an action
“[i]f the plaintiff fails to prosecute or to comply with . . . a court order[.]”
However, “[d]ismissal with prejudice 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. CharlotteMecklenburg Bd. of Educ., 269 F.3d 305, 348 (4th Cir. 2001)); see Mut. Fed. Sav. & Loan Ass’n,
872 F.2d at 92.
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;
(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 Revenue,
916 F.2d 171, 174 (4th Cir. 1990). “[T]he Court will combine its analysis of the question
whether 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. Jan. 28, 1999) (analyzing facts
under Rules 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 (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”).
Applying the four factor test to this case, regarding the first factor (Plaintiff’s degree of
personal responsibility or bad faith), the undersigned notes Plaintiff did not respond to
Defendants’ discovery requests or justify her failure to respond, even after the court directed
Plaintiff to serve her discovery responses by August 12, 2014. See ECF No. 38 at 2 (Order of
July 25, 2014 ¶ 7).
Defendants propounded discovery on November 14, 2013; Plaintiff’s
answers and responses were due December 17, 2013.
The Order of July 25, 2014 was
electronically transmitted to Plaintiff’s counsel of record via the court’s CM/ECF system.
“Failure to respond to interrogatories can merit dismissal or default.” Green, 188 F.R.D. at 424
(citing Nat’l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 643 (1976); Anderson v.
Home Ins. Co., 724 F.2d 82, 84 (8th Cir. 1983); Daye v. Gen. Motors Corp., 172 F.R.D. 173, 179
(M.D.N.C. 1997)). Moreover, noncompliance with discovery orders supports a finding of bad
faith. Id. In Green, the plaintiff demonstrated bad faith when she failed to comply with a
magistrate judge’s “order directing her to respond to [the defendant’s] interrogatories and
requests for documents[.]” Id. Similarly, in this case, Ms. Pinkney exhibited her bad faith by
failing to comply with the Order of July 25, 2014.
Ms. Pinkney initiated this lawsuit. Her bad faith is further demonstrated by her failure to
appear at her properly noticed deposition of May 8, 2014. Ms. Pinkney’s conduct demonstrates a
“pattern of indifference and disrespect to the authority of the court,” Mut. Fed. Sav. & Loan
Ass’n, 872 F.2d at 93, and supports the conclusion that she acted in bad faith.
The second factor concerns the amount of prejudice the noncompliance caused the
adversary. Considering that “[t]he purpose of pre-trial discovery is for a litigating attorney to
obtain information from the opposing party, information which in many cases is not otherwise
available,” Middlebrooks v. Sebelius, Civ. No. PJM-04-2792, 2009 WL 2514111, at *3 (D. Md.
Aug. 13, 2009), Defendants have suffered significant prejudice due to Plaintiff’s refusal to
respond to Defendants’ discovery requests and her failure to appear at her properly noticed
deposition. Without any discovery from Ms. Pinkney, Defendants are extremely prejudiced from
obtaining information regarding Plaintiff’s claims. This lack of information further hinders
Defendants’ preparation of their defense to Plaintiff’s allegations. Defendants are, in essence,
operating in the dark. Ms. Pinkney’s noncompliance forced Defendants to file a motion for
Despite that motion and an intervening order from the court, no progress or
movement has occurred because of Ms. Pinkney’s noncompliance. The second factor has been
With regard to the third factor — Plaintiff’s history of dilatoriness or noncompliance and
the need to deter such behavior — the record is replete with Ms. Pinkney’s instances of
noncompliance and lack of cooperation. Ms. Pinkney failed to appear for her deposition and did
not respond to Defendants’ discovery requests. Further, she has chosen to ignore this court’s
order directing her to respond to Defendants’ discovery requests. Conduct such as “stalling and
ignoring direct orders of the court . . . must obviously be deterred.” Mut. Fed. Sav. & Loan
Ass’n, 872 F.2d at 93. Deterring egregious acts of noncompliance should prevent future litigants
from “flout[ing] other discovery orders of other district courts.” Nat’l Hockey League v. Metro.
Hockey Club, 427 U.S. 639, 643 (1976). This court’s ability to manage this case effectively and
fairly has been undermined by Ms. Pinkney’s instances of noncompliance.
As for the fourth and final factor, i.e., the effectiveness of lesser sanctions than dismissal,
Plaintiff’s unresponsiveness to date, despite good faith efforts by Defendants and this court’s
intervention, indicates a sanction lesser than dismissal would not be effective. See Anderson v.
Found. For Advancement, Educ. & Emp’t of Am. Indians, 155 F.3d 500, 505 (4th Cir. 1998);
Middlebrooks, 2009 WL 2514111, at *3.
In conclusion, Plaintiff has exhibited contumacious behavior toward Defendants and the
court, warranting dismissal. See Fed. R. Civ. P. 37(b), 37(d) & 41(b). As previously outlined,
Plaintiff failed to appear for her deposition, failed to respond to Defendants’ discovery requests,
failed to respond to Defendants’ motion for sanctions and failed to comply with this court’s July
25, 2014 Order. Plaintiff failed to explain why she did not respond, even though she had
multiple opportunities including, most recently, upon Defendants filing correspondence
regarding Plaintiff’s discovery failure. See ECF No. 39. For reasons unknown to the court,
Plaintiff ceased to actively pursue her case. Plaintiff’s noncompliance has disrupted the judicial
process and must be deterred. Plaintiff’s failure to comply with a court order and her failure to
respond to Defendants’ filings demonstrate no lesser measure other than a dismissal would be
effective. Further, this court warned Plaintiff explicitly in the July 25, 2014 Order that her case
would be dismissed if she failed to serve her discovery responses by August 12, 2014. See
Green, 188 F.R.D. at 424; Sadler, 178 F.R.D. at 60. Those discovery responses were originally
due December 17, 2013. Even with this warning, Plaintiff continues to be unresponsive and
For the above reasons, the Court hereby DISMISSES all of Plaintiff’s claims against the
remaining Defendants1 of record. See Fed. R. Civ. P. 37(b), 37(d), 41(b). The Clerk of Court is
directed to CLOSE this case.
September 24, 2014
United States Magistrate Judge
PO Thigpen, CPL Blount, PFC Rapier and PO Stewart.
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