Williams v. Montgomery County Maryland

Filing 32

MEMORANDUM OPINION AND ORDER granting 25 MOTION to Dismiss and For Sanctions; dismissing complaint with prejudice; directing clerk to close this case. Signed by Judge Paula Xinis on 5/4/2018. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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JAMES A.WILLIAMS, JR.,
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Plaintiff,
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v.

Civil Action No. PX-16-3204
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MONTGOMERY COUNTY, MARYLAND,
Defendant.

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*

******
Pending before the Court is Defendant Montgomery County, Maryland’s motion to
dismiss and for sanctions, ECF No. 25. The issues are fully briefed, ECF Nos. 27 & 28, and a
recorded call on the motion was held on May 2, 2018. ECF No. 31. Upon consideration of the
parties’ arguments, the Court GRANTS the motion.
I.

BACKGROUND
On September 20, 2016, Plaintiff James A. Williams, Jr. (“Williams”) asserted a claim

through counsel, William Payne (“Payne”), for employment discrimination based on disability,
in violation of the Americans with Disabilities Act (“ADA”). ECF No. 1. Williams’ Complaint
alleged that Defendant Montgomery County, Maryland (“the County”), did not accommodate
Williams’ physical disability, and that he was wrongfully terminated. Id. The County was
served on January 5, 2017, and timely answered the Complaint on January 26. ECF Nos. 3 & 4.
The Court then issued a Scheduling Order setting pertinent deadlines, to include: February 13,
2017 – Initial Joint Status Report; April 3, 2017 – Williams’ deadline for Rule 26(a)(2)
disclosures; May 24, 2017 – Rule 26(e) supplementation of disclosures and responses; Close of
Discovery – June 19, 2017. ECF No. 6.

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The County, complying with the Scheduling Order, filed its status report on February 13,
2017. Although the Court’s Scheduling Order made plain that the parties must collaborate to
submit a joint status report, Williams did not do so, nor did he file a separate status report. See
generally ECF No. 8.
On May 12, Montgomery County served on Williams interrogatories and requests for
production of documents. ECF No. 25-4. Hearing nothing from Plaintiff, counsel for Defendant
attempted to contact Payne on June 7 to arrange Williams’ deposition. ECF No. 25-1 at 2. Payne
did not answer the call and his phone did not have voicemail capabilities at the time. ECF No.
25-1 at 2. Montgomery County followed with an email to Payne the following day, attempting
to ascertain the status of Plaintiff’s discovery responses and to schedule Williams’ deposition.
See ECF No. 25-5. Payne did not respond. ECF No. 25-1 at 2.
On June 13, the County again attempted to reach Payne to request Williams’ deposition;
the County also sought Plaintiff’s approval on a joint request to extend all discovery deadlines by
sixty (60) days so as to mitigate Plaintiff’s failure to answer interrogatories or respond to
document requests. ECF Nos. 9 & 25-1 at 2. Once again, Payne did not respond to the County’s
counsel, prompting the County to move for an extension of time to complete discovery. In that
motion, the County informed the Court of Payne’s non-responsiveness. See ECF No. 9 at ¶¶ 3–
10.
The Court held a recorded discovery conference on June 26, 2017. See ECF No. 11.
During the call, Payne requested extensions of the scheduling order and explained that his failure
to respond to the County was due to his health issues and the unexpected death of his brother.
Id. At the same time, Payne assured the Court that he was able and willing to represent Plaintiff
and comply with the requested discovery deadlines. Id. The Court granted the requested

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extension and made plain to the parties that it would not grant any further continuances absent a
showing of extraordinary circumstances. The Court also encouraged the parties, and more
particularly Payne, to contact the Court should further problems arise. Id. The Court then issued
an amended Scheduling Order with the following deadlines: July 26, 2017 – Plaintiff’s Rule
26(a)(2) disclosures; August 29, 2017 – Defendant’s Rule 26(a)(2) disclosures; September 19,
2017 – Rule 26(e)(2) supplementation of disclosures and responses; close of discovery –
October 5, 2017. See ECF No. 12.
Against this backdrop, neither Williams nor his counsel participated at all in discovery.
Accordingly, on September 26, 2017, the County forewarned Williams by first-class mail and
electronic communication that failure to respond to its discovery requests by October 2 would
result in the County filing a motion to compel and/or for sanctions, to include dismissal of the
case. ECF No. 25-5. The County also informed Payne that because he had not responded to
repeated attempts to set Williams’ deposition, the County was forced to note Williams’
deposition unilaterally for October 4 at 10:00 a.m., the day before the close of discovery and
without the benefit of any written discovery production. Id.
A week later, on October 3, Payne told counsel for the County that he would respond to
written discovery the following day, October 4, and offered Williams for deposition on October
6 or October 9. Id. The parties then agreed that Williams’ deposition would take place on
October 6 at 10:00 a.m. Id.
Despite express warning as to the potential for sanctions including dismissal, Williams
did not submit discovery responses on October 4, 2017. ECF No. 25-1 at 4. This failure
prompted the County to move for additional time to complete discovery and disclose the
likelihood that it would move to dismiss the Complaint “based on the complete lack of

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cooperation and discovery responses.” ECF No. 13. The County made clear that it sought
further extension only “out of an abundance of caution.” Id. at ¶ 13. On the same day, the
County submitted a separate status report pursuant to the Court’s Scheduling Order. In it, the
County chronicled its repeated good-faith attempts to complete discovery and that the parties had
agreed to conduct Williams’ the next morning. ECF No. 14. Although once again the Court’s
Scheduling Order made clear that the parties were to collaborate on a joint status report, Payne
did not contribute or submit a separate status report on Williams’ behalf.
On the same day, after the County had filed its motion and status report — and shortly
before close of business — Payne informed counsel for the County that Williams’ deposition was
cancelled because Williams conveyed that he was “not quite ready.” Payne also informed
counsel that the promised written discovery would not be forthcoming. See ECF Nos. 25-1 at 4,
25-9; see also ECF No. 31. At its understandable wits end, the County then withdrew its motion
to extend discovery. ECF No. 15. Discovery therefore closed by Court order as of October 5,
2017. Five days after the close of discovery, on October 10, 2017, Payne forwarded to counsel
for the County Williams’ incomplete answers to interrogatories and responses to document
production. ECF No. 25-10.1 The discovery responses were both deficient and highly
prejudicial to the County, identifying scores of previously undisclosed medical providers,
witnesses, and allegedly similarly situated comparators. See ECF No. 25-10.
The Court thereafter held a recorded status conference on November 16, 2017, during
which Payne did not deny that Williams’ deposition was cancelled at the client’s request and less
than twenty-four hours before it was to take place. Nor did Payne deny that he had failed to
respond to the County’s discovery requests before October 5 . ECF No. 20. Payne rather asked

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 Plaintiff did not respond to seven of the County’s twenty-six document requests. Id.; ECF No.

25-11 at ¶¶ 4, 7, 11, 18, 19, 20, 21.
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to reopen discovery, citing as grounds in support the same health and other personal issues on
which he relied to support his previous continuance request last June. Id. The Court declined to
reopen discovery and directed the County to file its motion to dismiss as sanction. Id.
The County filed its motion by the dispositive motions deadline. ECF No. 25. Williams,
through counsel, requested an extension of time to file his response to the motion, and the
response was filed on January 22, 2018. ECF Nos. 26 & 27. During the ensuing months,
Plaintiff did not supplement discovery responses or offer additional deposition dates in an effort
to cure any prejudice visited on the County by his dilatory approach to discovery. Rather, in
response to the County’s dismissal motion, Williams simply reiterated that Payne’s status as “a
sole legal practitioner with a large caseload,” as well as the loss of his brother and his back
condition requiring “strong over the counter medication,” merits reopening discovery and
denying dismissal. ECF No. 27 at 3–4. Williams further asserted, without support, that he made
“good-faith” attempts to comply with discovery. Id.
The Court then held a follow-up recorded telephone conference on May 2, 2018, to afford
Plaintiff a final opportunity to provide any additional argument or evidence as to why dismissal
was not appropriate. ECF No. 31. Payne reiterated his previous reasons and noted that he took
the County’s latest motion to extend discovery dates as, effectively, license to not comply with
the deadlines set by the Court. Id. Plaintiff’s counsel, however, did not contest that he failed to
produce any written discovery, or that Plaintiff refused to sit for deposition even after being
warned that a motion to dismiss may result. Id.
II. DISCUSSION
Rules 37and 41(b) empower courts to dismiss a case as part of a “comprehensive arsenal
of Federal Rules and statutes to protect themselves from abuse.” Chambers v. NASCO, Inc., 501

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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). 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). 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.” Fed. R. Civ. P. 41(b)
However, “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). Accordingly, the Court must consider
four-factors to ascertain the propriety of dismissal as a sanction: “ ‘(1) whether the noncomplying 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)).
Dismissal under Rule 41(b) similarly requires Courts to consider “(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 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

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under both rules are “ ‘virtually the same.’ ” Taylor v. Fresh Fields Markets, Inc., No. 95-55,
1996 WL 403787, at *2 (W.D. Va. June 27, 1996) (quoting Carter v. Univ. of W. Va. Sys., 23
F.3d 400 (4th Cir.1994)).
Here, Plaintiff’s flagrant and total failure to participate in discovery demands dismissal.
First, with regard to Plaintiff’s individual culpability, Williams put forward no good reason for
canceling his deposition at the eleventh hour, after months of failing to comply with written
discovery requests. Plaintiff’s personal refusal to sit for deposition because he was “not ready”
is itself grounds for dismissal. See Fed. R. Civ. P. 37(b), (d); see also Okpala v. Computer
Sciences Corp., CSC, 585 F. App’x 298 (Mem) (4th Cir. 2014) (“A district court may dismiss a
civil action if a party fails to comply with a discovery order or attend a properly noted
deposition.”). Second, and more broadly, even after this Court continued deadlines once to
accommodate Payne’s needs and warned the parties that it would not grant further extensions,
Plaintiff did not meet any of his discovery obligations or deadlines. Plaintiff’s non-compliance
was persistent and total. See ECF Nos. 8, 14, 25-10, 25-11.
As for prejudice to the County, this too warrants dismissal. By close of discovery, the
County had been given nothing from which to ascertain Plaintiff’s potential trial witnesses, his
theory of the case, or possible experts. See ECF Nos 25-10 & 25-11. The County, therefore, had
no opportunity to investigate Plaintiff’s claims, obtain defense experts, and prepare a meaningful
defense. See ECF No. 25-1 at 6–8; see also Van Gorkom v. Deutsche Bank, WDQ-04-2802,
2007 WL 5065533, at *2 (D. Md. July 12, 2007), aff’d 254 F. App’x 274 (4th Cir. 2007).
Prejudice of this degree further supports dismissal. See Van Gorkom, 2007 WL 5065533, at *2;
accord Hickman v. Taylor, 329 U.S. 495, 507 (1947) (“Mutual knowledge of all the relevant
facts gathered by both parties is essential to proper litigation.”); Hicks v. Feeney, 850 F.2d 152,

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156 (3d Cir. 1988) (“[T]he plaintiff ... must prove [her] case, as well as give the defendant an
opportunity to prepare against it.”);
Although the Court sympathizes with Payne’s personal problems, it cannot ignore that
Payne assured the Court ten months ago that he could comply with the amended Scheduling
Order, and thereafter failed to meet any of the outstanding discovery obligations. See ECF Nos.
11 & 25-4, 25-5, 25-6, 25-9, 25-10, 25-11. “Tolerating contempt of the Court’s orders and the
Rules ‘place[s] the credibility of the [C]ourt in doubt and invite[s] abuse.” Van Gorkom, 2007
WL 5065533, at *2 (quoting Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989)). Dismissal
with prejudice, therefore, is the only appropriate remedy. See, e.g. McCloud v. SuperValu, Inc.,
No. PWG-12-373, 2013 WL 1314964, at *5 (D. Md. Mar. 27, 2013); see also Rogler v. Fotos,
No. WDQ-14-228, 2016 WL 254912, at *7 (D. Med. Jan. 21, 2016).
As for the workability of a sanction short of dismissal, it bears noting that even if this
Court did not dismiss the case as a sanction, dismissal would nonetheless be warranted because
Williams’ discovery violations preclude him from presenting sufficient evidence at trial to
support his ADA claim. Because Plaintiff failed to produce requested evidence regarding his
disability and the County’s failure to reasonably accommodate the same, Williams would be
prevented from introducing such evidence at trial. See Fed. R. Civ. P. 37(c); ECF Nos. 25-10,
25-11, 27. To allow otherwise would condone trial by ambush. Permitting this action to
proceed, therefore, is pointless, and so a sanction short of dismissal is untenable.
Accordingly, for the reasons stated in this Memorandum Opinion, it is this fourth day of
May, 2018, ORDERED by the United States District Court for the District of Maryland:
1. Defendant MONTGOMERY COUNTY, MARYLAND’s Motion to Dismiss and
for Sanctions, ECF No. 25, is hereby GRANTED;

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2. Plaintiff JAMES A. WILLIAMS, JR.’s Complaint, ECF No.1, is DISMISSED
with prejudice;
3. The Clerk is directed to transmit this Memorandum Opinion and Order to the
parties and CLOSE this case.

5/4/2018
Date

/s/
Paula Xinis
United States District Judge

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