Mitchell v. Wolfe
ORDER GRANTING 27 Defendant's First Motion for Sanctions, DENYING AS MOOT 21 Defendant's Motion for Summary Judgment, DENYING AS MOOT 31 Plaintiff's Motion to Exempt Case from Mediation, and DENYING AS MOOT 33 Defendant's Second Motion for Sanctions. The Court sanctions the plaintiff for failing to comply with its orders and dismisses this action with prejudice. Signed by US District Judge Terrence W. Boyle on 12/1/2014. (Fisher, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
JOSHUA M. MITCHELL,
ROBERT WOLFE, individually and in his
official capacity as an officer with the Town
This matter is before the Court on defendant's motion for summary judgment [DE 21],
defendant's motions for sanctions [DE 27 and 33], and plaintiffs motion to exempt this case
from mediation [DE 31]. For the following reasons, the first motion for sanctions is GRANTED
and this matter is DISMISSED WITH PREJUDICE. The remaining motions are DENIED AS
On July 9, 2014, United States Magistrate Judge James E. Gates signed an order allowing
defendant's motion to compel and requiring plaintiff to provide complete discovery responses on
or before July 23, 2014. The order specifically notes, "[a]ny objections by plaintiff to the
production requests or interrogatories were waived by his failure to timely respond to them." [De
19 at 6]. The order does allow plaintiff to set forth objections based on privilege and work
product, as long as a privilege log is provided. [DE 19 at 6].
On July 18, 2014, counsel for defendant sent a letter to plaintiffs counsel setting forth
the areas where the discovery responses of plaintiff were incomplete and requesting that plaintiff
provide complete discovery responses. Plaintiffs counsel did not respond to that correspondence
and defendant then filed its motion for sanctions on July 31, 2014.
MOTIONS FOR SANCTIONS.
Defendant has filed two motions for sanctions with the Court. The first motion pertains to
discovery requests served by the defendant on plaintiff and the order of Magistrate Judge Gates
filed with the Court on July 9, 2014 which granted defendant's motion to compel. [DE 19].
Magistrate Judge Gates's order required plaintiff to provide complete discovery responses on or
before July 23, 2014. Defendant states that plaintiff failed to provide complete discovery
responses by that date despite plaintiffs counsel's attempt to obtain them. Defendant filed the
first motion for sanctions on July 31, 2014 to which plaintiff did not file a response.
"Rule 37(d) of the Federal Rules of Civil Procedure gives the district court wide
discretion to impose sanctions for a party's failure to comply with its discovery orders." Mutual
Federal Savings and Loan Assoc. v. Richards & Assocs., Inc., 872 F .2d 88, 92 (4th Cir. 1989).
Such a sanction includes "dismissing the action or proceeding in whole or in part." FED. R. CIV.
P. 37(b)(2)(A). Defendant has sufficiently established that plaintiff failed to comply with
Magistrate Judge Gates's discovery order. [DE 28 at 4-6]. Defendant specifically asks for a
sanction of dismissal with prejudice for defendant's failure to comply with Magistrate Judge
Gates's order. [DE 28 at 6-9].
In examining whether a dismissal or default is an appropriate sanction for failure to
comply with a discovery order of the Court, the Court considers four factors:
(1) whether the noncomplying party acted in bad faith; (2) the amount of
prejudice his noncompliance caused his adversary, which necessarily includes an
inquiry into the materiality of the evidence he failed to produce; (3) the need for
deterrence of the particular sort of noncompliance; and (4) the effectiveness of
less drastic sanctions.
Mutual Federal, 872 F.2d at 92. The Court finds that, in this case, dismissal is an appropriate
sanction. The Court finds bad faith here because Magistrate Judge Gates specifically warned
plaintiff that failure to comply with his order could result in sanctions, four months have passed
without explanation from plaintiff as to why he has failed to comply with the Court's order, and
plaintiff failed to provide an explanation in the form of a response to the motion. Joyner v.
Eckard Family Youth Alternatives, Inc., 2010 WL 3743766, *2 (E.D.N.C. Sept. 23, 2010).
Therefore the Court finds that plaintiffs bad faith is evident.
Second, the Court finds that defendant is prejudiced by plaintiffs noncompliance. It is
undisputed that over four months have passed since plaintiff was to have provided complete
discovery responses and defendant still does not have complete answers to his requests. "It is
obvious this prejudices [defendant's] ability to defend against plaintiffs claims." !d.
Third, the Court believes that noncompliance with this Court's orders must be deterred.
Plaintiff has not appeared to make any attempt to comply with the Court and he has not offered
any reason, no matter how unsound, for his non-compliance. It is unwise to allow plaintiffs
actions here where it would set an example for other litigants to completely ignore this Court's
orders. Further, defendant specifically requests dismissal of the action in his motion and plaintiff
has not responded to the motion. Therefore, the Court finds that any lesser sanction would be
futile or ineffective. See id. at *3.
Magistrate Judge Gates specifically warned plaintiff that failure to comply with his order
"shall subject him to the impositions of sanctions, which may include dismissal of his claims
with prejudice." [DE 19 at 7]. This warning suffices as adequate notice of the possible
consequences for failure to comply with the order. See Hathcock v. Navistar Int 'l Transp. Corp.,
53 F.3d 36, 40 (4th Cir. 1995). Accordingly, the Court grants defendant's motion for sanctions
[DE 27], and dismisses this action with prejudice as a result of plaintiffs failure to comply with
the Court's orders.
Defendant further requests that this Court order plaintiff to pay defendant's attorney's
fees incurred by plaintiffs failure to comply with the Court's July 9, 2014 order. However, the
Court notes that the end result of defendant's motion is the dismissal of plaintiffs claims against
him. The Court finds that this sanction is amongst the most severe available to it and that the
dismissal of plaintiffs action is a sufficient sanction on its own. The Court does not award fees
as a result.
Defendant's second motion for sanctions concerns the payment of attorney's fees
awarded by this Court on August 20, 2014 [DE 29]. Magistrate Judge Jones awarded defendant
$1809 in attorney's fees and ordered that they be paid by plaintiff on or before September 8,
2014. [DE 29]. On October 24, 2014, defendant provided the Court with evidence that plaintiff
had paid the ordered amount, but had done so one day late in violation of this Court's order.
However, as the relief sought by defendant has already been afforded him by this Court's grant
of the first motion for sanctions, the Court hereby denies the second motion for sanctions [DE
33] as moot and declines to award attorney's fees.
THE REMAINING MOTIONS ARE MOOT.
Still pending before this court are defendant's motions for summary judgment and to
exempt the case from mediation. As the Court has now sanctioned plaintiff by dismissing this
matter in its entirety with prejudice, the remaining motions are now moot and are denied as such.
For the foregoing reasons, defendant's first motion for sanctions is GRANTED. The
Court hereby SANCTIONS plaintiff for failing to comply with its orders and DISMISSES this
action WITH PREJUDICE. The remaining motions are DENIED AS MOOT. No attorney's fees
are awarded. The Clerk is directed to enter judgment accordingly and to close the file.
This the _1_ day of December, 2014.
NCE W. BOYLE
UNITED STATES DISTRICT JU
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