Johnson v. Diversified Consultants, Inc. et al

Filing 58

MEMORANDUM OPINION AND ORDER GRANTING 56 Defendant's Motion for Sanctions and DISMISSING with prejudice all of Plaintiff's claims against Defendant Diversified Consultants, Inc. Signed by Judge Paul W. Grimm on 4/12/2016. (kns, Deputy Clerk)(c/m 4/13/16)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

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TYNETTA D. JOHNSON,

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Plaintiff,

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v.

Case No.: PWG-15-1486

DIVERSIFIED
et al.,

CONSULTANTS,

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INC.,

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Defendants.

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MEMORANDUM

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OPINON AND ORDER

This Memorandum Opinion addresses the motion for sanctions filed on February 10,
2016, by Defendant

Diversified

Consultants,

Inc., ("Diversified")

against Plaintiff Tynetta

Johnson for failure to comply with a discovery order. Def.'s Mot., ECF No. 56. Johnson had
until February 29, 2016, to file an opposition to Diversified's motion. See Loc. R. 105.2(a). She
has not done so. A hearing is unnecessary.

See Loc. R. 105.6. For the reasons stated herein,

Defendant's motion for sanctions IS GRANTED.

I.

BACKGROUND
Diversified states that it served interrogatories and requests for document production on

Johnson bye-mail and U.S. mail on October 12,2015. See Def.'s Disc. Req., Def.'s Mot., Ex. 1,
ECF No. 56-1. Under Fed. R. Civ. P. 33(b)(2) and 34(b)(2) as well as my Discovery Order, ECF
No. 8-1, Johnson had thirty days to respond.

Diversified sent Johnson a letter on December 1,

2015, in a "good faith attempt to resolve a discovery dispute," stating that Johnson had not
responded to its discovery requests. See Def.'s Letter, Def.'s Mot., Ex. 2, ECF No. 56-2.

Diversified filed a letter on December 28, 2015, asking for a pre-motion conference to
request permission to file a motion to compel Johnson to respond to its discovery requests. See
ECF No. 44. I scheduled a pre-motion telephone conference for January 14,2016.

ECF No. 45.

Johnson did not participate in the conference call, stating "that she was aware of the call but had
misplaced it on her schedule and was unable to participate."

January 15, 2016, Letter Order,

ECF No. 53. In this letter order, I ordered that

I will treat [Diversified]'s and Experian's letters, ECFs No. 44 & 46, respectively,
as motions to compel, which will be granted. Plaintiff is ordered to provide full
and complete responses to all outstanding and overdue discovery requests from
Defendants [Diversified] and Experian by no later than February 5, 2016.
Plaintiff is advised that pursuant to Fed. R. Civ. P. 37(a)(4), "an evasive or
incomplete disclosure, answer, or response must be treated as a failure to disclose,
answer, or respond." Should Johnson fail to provide forthright and complete
responses to [Diversified]'s and Experian's discovery requests, Defendants
[Diversified] and Experian will be permitted to file motions for sanctions without
seeking further permission from this Court.
Sanctions may include case
dispositive sanctions, including dismissal with prejudice pursuant to Fed. R. Civ.
P.37(b).
Id.

Diversified

states, and Johnson has failed to contest, that she has not responded to

Diversified's discovery requests. See Def.' s Mot. 2.

II.

DISCUSSION
A. Dismissal
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).

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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."

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
plaintiffs

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)

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the effectiveness of sanctions less drastic than dismissal."

Hillig v. Comm'r of Internal Review,

916 F.2d 171,174 (4th Cir. 1990). "(TJhe 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. 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 Fed. R Civ. P.
Rules 37(d) and 41(b) together and dismissing without prejudice pro
plaintiff twice failed to appear for his scheduled deposition).

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plaintiffs

claims where

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.RD. 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").

Here, with regard to the first factor under both tests, Johnson's bad faith or personal
responsibility,

she failed to provide any responses to Diversified's

discovery requests or to

justify her failure to respond even after being ordered by this Court and warned that dismissal of
her case against Diversified could result.

See January 15, 2016, Letter Order.

"Failure to

respond to interrogatories can merit dismissal or default." Green" 188 F.R.D. at 424 (citing Nat 'I
Hockey League v. Metro. Hockey Club, 427 U.S. 639, 643 (1976), and Daye v. Gen. Motors
Corp" 172 F.RD. 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

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failed to comply with a magistrate judge's "order directing her to respond to [the defendant's]
interrogatories and requests for documents."

Id.

Similarly, Johnson has demonstrated her bad

faith by failing to comply with the January 15, 2016, Letter Order compelling the same.
Moreover, Johnson has failed to respond in any way to Diversified's

motion for sanctions.

Plaintiff s conduct in this case 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.

As noted, the second factor is the prejudice caused Defendant, for which I must consider
whether the evidence withheld is material.

Id.

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 042792, 2009 WL 2514111, at *3 (D. Md. Aug. 13, 2009), Diversified has suffered significant
prejudice as a result of Johnson's

continued noncompliance

with discovery requests.

The

evidence sought by Diversified's discovery request goes to the heart of her claim, and it cannot
be disputed that her failure to answer to any of Diversified's

discovery requests precludes

Diversified from preparing a defense. See Anderson v. Found. for Advancement, Educ. & Emp't
of Am. Indians, 155 F.3d 500, 505 (4th Cir. 1998). Diversified first requested discovery on or
about October 12,2015.

See Def.'s Disc. Req. Diversified made subsequent attempts to secure

this discovery from Johnson. See Def.' s Letter. She ignored a specific Court Order to provide
"forthright and complete" responses to Diversified's discovery requests.
Letter Order.

See January 15,2016,

Thus, Defendant suffered additional prejudice in the form of added expenses,

aggravation, and delay.

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With regard to the third factor-Plaintiff
the need to deter such behavior-Johnson

s history of dilatoriness or noncompliance and

has failed to comply with the rules of procedure and

Court orders regarding discovery in this case, and she has. not indicated a likelihood of
responding to future discovery requests.

Johnson's failure to respond to discovery requests has

already resulted in the dismissal of her case against Defendant NCO Financial Systems, Inc. See
ECF No. 42.

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).

Johnson's failure to respond to Diversified's discovery requests combined with her subsequent
willful disregard of a Court Order undermines this Court's ability to manage this case effectively
and fairly.

As for the last factor, the effectiveness of lesser sanctions than dismissal, Johnson's
unresponsiveness thus far despite Diversified's good faith efforts and the Court's interventions in
the discovery process indicates that further sanctions other than dismissal will not be effective.
See Anderson, 155 F.3d at 505; Middlebrooks, 2009 WL 2514111, at *3.

In sum, Plaintiff has exhibited contumacious behavior toward the Defendant and the
Court, warranting dismissal. See Fed. R. Civ. P. 37(b), 37(d) & 41(b). Johnson failed to respond
to Diversified's discovery request and this Court's January 15,2016, Letter Order and failed to
explain why she has not responded.

Johnson's

noncompliance

prejudiced Diversified by

withholding information such that it could not build its defense, disrupted the judicial process,
and must be deterred. Her noncompliance also has caused delay to Diversified.

Moreover, her

failure to comply with a Court Order and failure to respond to Diversifed's filings demonstrates

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that no measure other than dismissal would be effective and enable this case to proceed forward
to its resolution on the merits. Further, this Court warned Johnson explicitly in its January 15,
2016, Letter Order that dismissal was a possible sanction for her actions or, more accurately,
inaction.

See Green, 188 F.R.D. at 424; Sadler, 178 F.R.D. at 60.

Johnson's case against Diversified with prejudice is appropriate.
motion for sanctions IS GRANTED, and Johnson's

Therefore, dismissal of

Accordingly, Diversified's

case against Diversified IS DISMISSED

with prejudice.

ORDER
Accordingly, it is this 12th day of April, 2016, hereby ORDERED that Defendant's
motion for sanctions, ECF No. 56, IS GRANTED.

The Clerk SHALL DISMISS with prejudice

all of Plaintiffs claims against Defendant Diversified.
So ordered.
lSI
Paul W. Grimm
United States
strict Judge
dpb

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