Wilson et al v. Thomas et al

Filing 92

ORDER deferring in part and granting in part 87 Motion to Compel. Signed by District Judge Terrence W. Boyle on 8/23/2016. Plaintiff is ORDERED to either respond to this order or respond to defendant's requests and file proof of the same not later than 5:00 PM on August 31, 2016. Failure to do so SHALL result in the defendants' requests for admission being deemed admitted and dismissal of this action with prejudice. Copy mailed to pro se plaintiff Natasha Wright via US Mail to 9935 Cherry Creek Boulevard, Apt 206, Raleigh, NC 27617. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-85-BO
NATASHA WRIGHT,

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Plaintiff,

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V.

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ORDER

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KELLY J. THOMAS, in his official capacity as
the Commissioner of Motor Vehicles, North
Carolina Department of Transportation, Division
of Motor Vehicles, and NICHOLAS J.
TENNYSON, in his official capacity as the
Secretary of Transportation, North Carolina
Department of Transportation,

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Defendants.

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This cause comes before the Court on defendants' motion to compel discovery and to
deem requests for admissions admitted. [DE 87]. Plaintiff, now proceeding in this action prose,
has not responded to the motion. For the reasons discussed below, the Court defers its ruling in
part and grants the motion in part at this time.
BACKGROUND
Plaintiff and several other co-plaintiffs filed this action through counsel bringing claims
under the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA), and the North
Carolina Constitution. [DE 2]. Before the close of the discovery period, counsel for plaintiff
Natasha Wright (hereinafter "plaintiff Wright") was permitted to withdraw. [DE 80, 82]. Soon
thereafter, all plaintiffs except plaintiff Wright settled with defendants and the parties entered a
consentjudgment. [DE 84].
According to the instant motion, which went unchallenged by plaintiff Wright, plaintiff
Wright was served, through counsel, defendants' first set of interrogatories, first request for

production of documents, and first request for admissions on August 21, 2015. [DE 88-1]. The
discovery deadline in the case was eventually extended until June 16, 2016. [DE 80]. On June 3,
2016, following the withdrawal of plaintiff Wright's counsel, counsel for defendants sent
plaintiff Wright a copy of the August 2015 discovery requests and notified plaintiff that she was
under obligation to respond to these requests. [DE 88-2, 88-3]. Plaintiff Wright did not respond
and did not comply.
On June 21, 2016, counsel for defendants sent plaintiff Wright a letter again seeking
discovery responses. [DE 88-2, 88-4]. Counsel for defendants notified plaintiff Wright that the
discovery deadline had passed but that she was still responsible for responding to discovery
requests. [DE 88-4]. Counsel for defendants also warned that inaction would lead to a motion to
compel. Id. Once again, however, plaintiff Wright did not respond and did not comply.
The instant motion to compel discovery and deem requests for admission admitted
followed.
DISCUSSION
Federal Rule of Civil Procedure 36 concerns requests for admission and states: "A matter
is admitted unless, within 30 days after being served, the party to whom the request is directed
serves on the requesting party a written answer or objection addressed to the matter and signed
by the party or its attorney." Fed. R. Civ. P. 36(a)(3). "A matter admitted under [Rule 36] is
conclusively established unless the court, on motion, permits the admission to be withdrawn"
Fed. R. Civ. P. 36(b).
Federal Rule of Civil Procedure 3 7 permits a party seeking discovery to move for an
order compelling a discovery response where the nonmoving party fails to, inter alia, answer an
interrogatory or produce documents. Fed. R. Civ. P. 37(a)(3)(B). If the motion is granted and the
nonmoving party does not comply, "Rule 37 permits a court to impose sanctions, including
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dismissal of a case with prejudice, if a party fails to comply with a discovery order." See Riggins
v. Steel Techs., 48 Fed. App'x 460, 462 (4th Cir. 2002)(unpublished).
Prior to entry of a sanction as drastic as dismissal of an action, the court must consider
first whether there has been bad faith on the part of the non-complying party; second the amount
of prejudice the non-compliance has caused the other party; third the need for deterrence of this
sort of non-compliance; and fourth whether less drastic sanctions would be effective. Mut. Fed.
Sav. & Loan Ass 'n v. Richards & Associates., Inc., 872 F .2d 88, 92 (4th Cir. 1989).
Here, plaintiff Wright has failed to comply with the Court's scheduling orders and,
according to counsel for defendants, has been non-responsive to their efforts to communicate
since counsel was permitted to withdraw. By not participating in discovery, plaintiff Wright has
indeed deprived defendants of their opportunity to defend themselves against plaintiff Wright's
claims and participate meaningfully in this action. The Court finds that plaintiff Wright's
behavior and non-compliance amount to bad faith, result in prejudice against defendant, and
require deterrence. In light of plaintiff Wright's non-obedience, the Court is unconvinced that a
sanction less drastic than dismissal would be appropriate.
In addition to consideration of the factors above, however, a court must provide a party
subject to sanction with a clear and express warning that failure to satisfy certain conditions or
abide by the court's order will result in dismissal of the action with prejudice. See, e.g., Pontoon
v. Natl. R.R. Passenger Corp., 194 F.R.D. 521, 524 (M.D.N.C. 1999).
Given plaintiff Wright's pro se status and relatively recent withdrawal of
counsel, and in an abundance of caution, the Court presently defers its ruling on the pending
motion to deem requests for admissions admitted. Plaintiff is notified and warned, however, that
failure to respond to this order with an explanation of her failure to respond to requests for
admission and her intent to continue to prosecute this case or to make the appropriate responses
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to defendant's requests for admission and file proof of the same with the Court will result in the
requests for admission being deemed admitted.
The Court grants defendants' motion to compel discovery, compels plaintiff to participate
fully in discovery by producing responses to defendants' interrogatories and requests for
production, and hereby notifies and warns plaintiff that failure to either respond to this order with
an explanation of her failure to respond to discovery requests and her intent to continue to
prosecute this case or to make the appropriate responses to defendant's discovery requests and
file proof of the same with the Court will result in dismissal of her action with prejudice.
CONCLUSION
As discussed above, ruling on defendants' motion to deem requests for admission
admitted is presently DEFERRED, and defendant's motion to compel discovery is GRANTED.

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[DE 88]. Plaintiff is ORDERED to either respond to this order or respond to defendant's requests
and file proof of the same not later than 5 :00 PM on August 31, 2016. Failure to do so SHALL
result in the defendants' requests for admission being deemed admitted and dismissal of this
action with prejudice.

SO ORDERED, this

.dJ_ day of August, 2016.
T RRENCE W. BOYLE
UNITED STATES DISTRICT

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