Hendricks v. The Quikrete Companies, Inc.

Filing 53

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 6/20/2017. (kns, Deputy Clerk)

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IN THE UNITED STATES I)ISTRICT COURT FOR THE DISTRICT OF MARYLAND SOl/tltem DiI.isiol/ •••• , ••• - I r I MARITA HENDRICKS, * Plaintiff, * v. Case No.: G.JJJ-14-2695 * THE QUIKRETE COMPANIES, INC. * Defendant. * * * * * * * * * * * * * * MEMORANDUM OPINION Plaintiff hcr cmploycr, VII ofthc Marita Hendricks the Quikrete Companics ("Dcfcndant'" ECI' No. 37. and grantcd Plaintiffs rcncwed dcadlincs ItJr discovcry. to Dismiss I(Jr Lack of Prosccution to Dcfcndant's initially Iiled this action against or "Quikrctc"). with Disabilities dcnicd Dcfcndant's 45 and 46. Thc Court held a telcphone respondcd or "Hendricks") Civil Rights Act of 1964. thc Americans ECI' No. I. Thc Court previously Prosccution. ("Plaintiff' alleging violations Act. and the Equal Pay Act. Motion to Dismiss ItJr Lack of Motion to Lili Stay. ECF No. 38. See ECF Nos. status call with the partics on April 10.2017 See ECI' No. 47. Now pcnding is Dcfcndanl's and I(Jr Monctary Sanctions. will be dismissed and sct sccond Motion ECI' No. 49. Plaintiff has not Motion. and thc time I(lr doing so has passcd. No hearing is nccessary. See Loe. R. 105.6 (D. Md. 2016). For thc following reasons. Defcndant's Lack of Prosecution ofTitlc and for Monctary with prejudicc. Sanctions. but no attorncys' Motion to Dismiss f())' is granted. in part. and dcnied. in part. The casc Iccs shall be awarded. • I. BACKGROUND The earlier procedural history of this case was fully sct forth in the Court's 2017. ECF No. 45 at 1_3.1 Following Opinion dated AprilS. this dispute through mcdiation. Lack of Prosecution. applicablc on Fcbruary 2. 2017. Dcfendantliled ECF No. 37. and PlaintifTtiled attempt to resolve a Motion to Dismiss for a Motion to Lin the Stay. which had been in see ECF No. 38. In the Court's previous Opinion. the Court declincd place since July 24.2015. to dismiss PlaintifTs an unsuccessful Memorandum case. and lined the stay. but warncd PlaintifTthal future failure to abide by Local and Federal Rules. or failure to comply with Court orders. would result in the dismissal of her casc with prejudice. deadlines for completion The Court convcned of discovery. call and imposed new See ECF Nos. 44 and 47. Dcfendant now states that Plaintiff has since failed to notice any depositions. for her own deposition. a scheduling producc outstanding discovery. or show up ECl' No. 49. No motion to compel has been tiled. but Dcfendant moves instead to dismiss the case for failure to prosecute. In Defendant's that alier the Court's Motion to Dismiss tor Failure to Prosecute. April 10.2017 counsel twice in an elTort to schedule status call. Defendant's Plaintiff's 49-1 at 4: see ECF No. 49-6 at 2 (attaching April 21. 2017. Defendant's Plainti ff' s deposition deposition. Defendant's counsel reached out to Plaintiff's but received no response. emails sent on April 11 and April 14.2(17). counsel sent Plaintiff's counsel a Notice of Deposition counsel responded via email that Plaintiff was "unavailable requested that her deposition instead be scheduled 1 then rescheduled Pin cites to documents filed by ECF No. Thus. on setting for May 22. 2017. See ECF No. 49-7 at 2. 22. 27. On April 21. 2017. Plaintiff's at 2. Defendant counsel attests 011 Plaintiff's ""any day between May 4-19'" ECF No. 49-8 deposition for May 19. 2017 at 10:00 a.m. ECF No. the Court"s electronic filing system (CM/ECF) that system. 2 the week of the 22nd" and refer to the page numbers generated 49-9 at 2. At 7:53 a.m. on May 19.2017. Plaintiffs counsel emailed Defendant's counsel. stating that: 1 .i ust received a message Irom Ms. Hendricks that due to a transportation delay she will not be able to attend the deposition. 1 do not have any further specilics. My understanding was that she was in the process of moving to North Carolina but would catch a night back to 13WI yesterday I(Jr attendance at the deposition this morning. 1 am available via cell phone this morning ... ECI' No. 49-1 1 at 2.2 Plaintitrs counsel did not attempt to reschedule the deposition. See ECI' No. 49-1 at 6. In addition to missing her deposition. Second Set of Interrogatories. originally Plaintiff has thus lar failed to answer Defendant's issued on May 7. 2015. and re.sent on April 21. 20 17. ECF No. 49-7 at 22: see ECF No. 49-1 at 5. Plainliffalso Defendant's her [medicall order:' Request for Production providers of Documents that "Plaintiff to date. Plaintiff allegedly has not produced are responsive ECI' No. 49-10 at 3. I'laintitrs counsel for "an electronic to which requests. Id. I'laintitrs production and the documents counsel sent an email on May 12.2017. ECF No. 49-10 at 2. to which Defendant's request:' document copy of the full set of discovery counsel allegedly documents to Irom ofa protective order on July J. 20 15. ECF No. 21. but the medical records requested. counsel further submits that Plaintiffs which documents has requested and will produce the same upon receipt and execution ECF No. 49-4 at 3. Thc Court entered a protective Delendant's stated in her April J. 2015 Response ECI' No. 49-1 at 3. "does not identify are not [B Jates stamped:' asking Delendant's that was provided to Ms. Hendricks:' counsel replied. "1 am alraid I do not understand your did not respond. nor ever produce the outstanding discovery. :! Defendant's counsel attests that he checked the Baltimore Washington International (AWl) Airport online "Flight Tracker:" and that all flights from North Carolina airports to BWI arriving 011 May 18.20 17 wen~marked as "arrived:' ECF No. 49-12 al 2-9. . 3 Defendant has now tiled a renewed Motion lilr Dismissal tor Want of Prosecution and Ii)\' Monetary Sanctions under Fed. R. Civ. P. 41(b) and 37. ECF No. 49. PlaintilThas not responded to the Motion. and the time for doing so has passed. The Court has considered the facts and procedural history. as well as applicable rules and casc law. and now determines that dismissal with prejudice is warranted. II. STANDARD OF REVIF:W A. Dismissal under Fed. R. Civ. P. 41(h) Fed. R. Civ. P. 41 (b) provides that a Defendant "may move to dismiss the action or any claim against it:' where the Plaintiff has Illiled to prosecute the action or comply with the Rules or the Court's orders. Fed. R. Civ. 1'. 41(b). The Court considers lillir factors belixe dismissing a case tiJr failure to prosecute: ..( I) the plaintilr 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 lushion: and (4) the eflcctiveness of sanctions less drastic than dismissal:' IIi/Ii}!. 1'. C.I. R.• 916 F.2d 171. 174 (4th Cir. 1990). "Dismissal with prejudice is ordinarily reserved lor the most egregious cases:' Pinkney". 2062.2014 711i}!.flen. o. CIV.A. WGC-12. N WL 4825884. at *2 (D. Md. Sept. 24. 2014) (citing DOl'e ". CodesClJ. 569 F.2d 807, 810 (4th Cir. 1978) (noting that dismissal with prejudice under Rule 41 (h) is reserved j(lr a "clear record of delay or contumacious conduct by the plaintilrn. B. Sanctions under Fed. I~. Ci\'. P. 37(b) The Court also has discretion under Fed. Civ. P. 37(b)(2)(A) to impose a range of sanctions on a party for ..tuil(ing] to ohey an order to provide or permit discovery"' (emphasis added): 4 (i) (ii) (iii) (iv) (v) (vi) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as thc prevailing party claims: prohibiting the disobedient party from supporting or opposing designated claims or defenses, or li'om introducing designated matters in evidence: striking pleadings in whole or in part: staying further proceedings until the order is obeyed: dismissing the action or proceeding in whole or in part: rendering a default judgment against the disobedient party: or (vii) treating as contempt of court the f~lilure to obey any order except an order to submit to a physical or mental examination. Fed. R. Civ. 1'. 37(b)(2)(A). Regarding the award of attorneys' fees, Rule 37 further provides: Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses. including attorney's fees, caused by the lailure, unless the lailure was substantially justified or other circumstances makc an award of expenses unjust. Fed. R. Civ. 1'. 37(b)(2)(C). The failure to comply with a court order is "substantially justified" where thcre is "a genuine dispute as to proper resolution" or where "a reasonable person could think that the failure to produce discovery is correct. that is, if it has a reasonable basis in law and fact." Johnson. 2015 WL 8538710, at *4 (citing Decisionll1Si~hlS. Inc. v. Selllia Grp .. Inc.. 311 Fed. App'x 586. 599 (4th Cir. 2009): Pierce \'. Undenl'Ood. 487 U.S. 552. 565 (1988)). III. ANALYSIS A. Dismissal under Fed. R. Civ. 1'. "I(b) i. Personal Responsibility Here. I'lainti 1'1' failed to attend her own deposition. with no apparent justification for has doing so. and has made no efli.m to reschedufe the deposition. Additionally, Plaintiff allegedly has not produced outstanding discovery. such as her responses to Defendant's Second Set of Interrogatories or requested medical records. "Failure to respond to interrogatories can merit 5 dismissal or default." Greell \'. Johll Chalil/oll & SOliS. 188 F.R.D. 422. 424 (M.D.N.C.) (citing Naliollal Hockey League I', Melropo/ilall//ockey C1uh. IlIc.. 427 U,S. 639, 643 (1976», Moreover. this inaetion followed the Court's prior leniency and lining of the stay Plaintilrs request- per and the April 10.2017 status call reminding Plaintiff of these discovery obligations and deadlines. PlaintilThas demonstrated bad laith by ignoring the Court's prior warning that laiJure to comply with Local and Federal Rules and court orders would result in the dismissal of her case, Despite her request to lin the stay. PlaintifThas not fullilled her outstanding discovery obligations. or been responsive to Defendant's repeated communications. PlaintilThas also failed to respond in any way to Defendant's Motion to Dismiss fllr Lack of Prosecution. Plaintiffs conduct in this case thus demonstrates a "pattern of indifTerence and disrespect to the authority of the court:' Mul. Fed. .'1m'. & Loall Ass '11 \'. Richards & Assocs .. IlIc.• 872 F.2d 88, 93 (4th Cir. 1989). and supp0l1s the conclusion that she acted in bad faith, ii. Prejudice Caused to the Defendant Prejudice caused to the Defendant at this juncture is substantia!. "Thc 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 availablc:' Midellehrooks I'. Sehelius. Civ. No. P.lM 04- 2792, 2009 WL 2514111. at *3 (D. Md. Aug, 13,2(09). Dcfendant Quikrcte has experienced significant prcjudice as a result ofPlaintitrs continucd noncompliance with discovery requcsts. Hendricks has not made herscJ I'available for deposition. Further. the evidence sought by Defendant's discovery requests "goes to the heart" ofPlaintitTs cmployment discrimination claim. and it cannot be disputed that Plaintiffs fililure to answer interrogatories and produce relevant documcnts precludes Defendant from preparing a defense. See Johllsoll. 2015 WL 853871 O. at *3: (citi ng A IIdersoll \'. Foul1ll. jill' Ad\,{/llcelllel7l, Eeluc. & Elllp '1 o/A 6 111. IlIeliallS. 155 F.3d 500. 505 (4th Cir. 1998) (noting that delendant's delay in disclosing the absence of certain documents prejudiced plaintiff). Hcre. Defendant has made continued attempts to secure discovery li'om Plaintiff: to no avail. Thus. Delendant has suffered additional prejudice "in the form of added expenses. aggravation. and delay:' Woodard-Charily \'. Kaiser FOllnd Heallh Pial/ oj"rhe Alid-AII. Stales. II/c.. No. PWG-II-3555. 2013 WL 3863935. at *4 (D. Md. July 23. 2013). iii. History of Dilatory Conduct This Motion marks Delendant's second Motion to Dismiss for Failure to Prosecute. Plaintiff"has yet to comply with the rules of procedure:' or abide by Court-imposed deadlines. and "has not indicated a likelihood of responding to future discovery requests:' WoodardCharilV \'. Kaiser FOllnd. Heallh Pial/ of"lhe Mid-All. Slales. Inc.. No. PWG-II-3555. . . 2013 WL 3863935. at *4 (D. Md. July 23.2013), This case has floundered on the docket lor nearly three years. and the Court was lenient in denying Delendant's earlier Motion to Dismiss and granting Plaintiff-s Motion to Liti Stay. Plaintiff was reminded of the outstanding discovcry. permittcd additional timc to producc the discovery. and failed to do so. Stalling and delaying the discovery proccss is conduct that "must obviously be detcrred:' Mill. Fed. Sa\'. & I.oan Ass 'n, 872 F.2d at 93, In sum. Plaintiffs dilatory conduct has undcrmined the Court's ability to manage this case effectively and fairly. and wcighs in favor of dismissal. iv. Effectiveness of Lesser Sanctions Finally. Plaintilrs behavior thus far compels the conclusion that sanctions other than dismissal will not be effectivc at this time. Pursuant to the Court's April 5. 2017 Memorandum Opinion. Plaintiff is well aware that dismissal of her case is a potential sanction. See Pisani \', Ballimore Cily Police Del' 'I. No. WDQ-12-1654. 2014 WL 1401934. at *4 (D, Md. Apr. 8. 7 2014) (noting that plainti ITknew dismissal was a possible sanction. and thus finding dismissal with prejudice was warranted). Plaintiffs conduct since the Court's Opinion and status call demonstrates a persistent unwillingness to fully and effectively litigate this case. Lastly. it bears noting that PlaintilTprovides the Court with no response to Defendant's Motion to Dismiss: hence. there can be no justification for continued latitude. Plaintiffs case will be dismissed with prejudice. B. Attorneys' Fees under Fed. R. Civ. 1'. 37(b) As noted. Plaintiff does not provide any justilication. let alone a substantial one. for her lailure to cooperate in the discovery process. The Court is also unaware of any circumstances that would make an award of expenses unjust. Nevertheless. although the Court warned Plaintiff that future failure to comply with Local and Federal Rules and Court orders would result in the dismissal of her case with prejudice. and Plaintiffs lailure to meaningfully participate in discovery warrants dismissal. PlaintifTis not in violation of any specific Order of the Court mandating production of discovery. as contemplated by the plain language of Fed. R. Civ. 1'. 37(b). Accordingly. Defendant is not entitled to attorneys' fees in this case. IV. CONCLUSION For the foregoing reasons. Defendant's Motion to Dismiss for Want of Prosecution and for Monetary Sanctions. ECF No. 49. is granted. in part. and denied. in parI. The case is dismissed with prejudice. but no attorneys' fees shall be granted. A separate Order shall issue. A-~- Date: June ?rJ. 2017 GEORGE J. HAZEL United States District Judge 8

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