Hendricks v. The Quikrete Companies, Inc.

Filing 53

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

IN THE UNITED STATES I)ISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOl/tltem DiI.isiol/

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MARITA HENDRICKS,

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Plaintiff,

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v.

Case No.: G.JJJ-14-2695

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THE QUIKRETE COMPANIES, INC.

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Defendant.

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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.

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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.

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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):

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(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

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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

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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.

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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

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