Parker v. Granite Services International Inc. et al

Filing 63

ORDER granting 55 Motion for Sanctions - Plaintiff's complaint is DISMISSED with prejudice, and the clerk is directed to close this case. Signed by District Judge Louise Wood Flanagan on 04/26/2013. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:11-CV-236-FL

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MICHAEL T. PARKER,
Plaintiff,

v.
GRANITE SERVICES INTERNATIONAL
INC. and GENERAL ELECTRIC, INC.,
Defendants.

ORDER

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This matter comes before the court on defendants' joint motion for sanctions pursuant to Rule
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37(b) (DE 55). Plaintiff, proceeding prose, responded in opposition, and defendants replied. The
issues raised are ripe for ruling. For the reasons that follow, the court grants defendants' motion and
dismisses plaintiffs complaint.

BACKGROUND
Plaintiff filed charge of discrimination in January 2000 with the Equal Employment
Opportunity Commission ("EEOC"), alleging discrimination under Title VII of the Civil Rights Act
of 1964 ("Title VII"), 42 U.S.C. § 2000e et seg, and the Age Discrimination in Employment Act
("ADEA''), 29 U.S.C. § 621 et seg. On March 16,2012, the court entered an initial order regarding
planning and scheduling, which directed the parties to conduct a Rule 26(f) conference. Defendant
General Electric, Inc. ("GE") moved to postpone until after the court ruled on pending motion to

Plaintiff's response was untimely filed. The court will nonetheless consider its substance for the purposes
of ruling on defendants' motion.
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dismiss. The court granted the continuance on April16, 2012. The motion to dismiss was referred
to magistrate judge for Memorandum and Recommendations, which was issued on April 24, 2012.
By order on August 14, 2012, the court denied defendant GE's motion to dismiss, and directed the
parties to conduct a Rule 26(f) conference. The parties conferred on September 4, 2012, and
submitted a joint report and plan on September 17,2012. Thereafter, the court issued a scheduling
order. Initial disclosures as required by Rule 26(a)(l) had been given a deadline of fourteen (14)
days from the date of the Rule 26(f) conference in the court's March 16, 2012, order and such
deadline was not subsequently amended. Defendants timely served their initial disclosures, and
plaintiff failed to do so. On October 31, 2012, and November 5, 2012, defendants served their first
sets of interrogatories and first requests for production on plaintiff. Plaintiff failed to timely respond
to these discovery requests.
On January 3, 2013, and January 10, 2013, defendants filed separate motions to compel
plaintiff to respond to outstanding discovery requests and to serve his initial disclosures. Magistrate
Judge William A. Webb entered an order on February 5, 2013, requiring plaintiff to serve his initial
disclosures and respond to defendants' discovery within seven days of entry of that order. At that
time plaintiff was warned that continued failure to abide by the Federal Rules of Civil Procedure and
court orders would subject him to sanctions, which may include dismissal of his complaint. As of
defendants' reply on April 11, 2013, plaintiff has not yet served any initial disclosures or responded
to discovery as required.
DISCUSSION
The Federal Rules of Civil Procedure allow a court to impose sanctions, up to and including
dismissal, when a party fails to comply with discovery ordered by the court. Fed. R. Civ. P. 37(b).
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Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1994) (noting that even prose litigants are "subject to
the time requirements and respect for court orders without which effective judicial administration
would be impossible"). Before dismissing a claim, courts should warn the plaintiff about the
potential for dismissal for failure to comply with its order. ~Hathcock v. Navistar Int'l Transp.
Corp., 53 F3d 36, 40 (4th Cir. 1995). In determining whether to dismiss a claim for failure to
comply with a discovery order, a court considers:
(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 Fed. Sav. & Loan v. Richards & Assocs., 872 F.2d 88, 92 (4th Cir. 1989). The failure to
respond to interrogatories is sufficient to sanction with dismissal. National Hockey League v.
Metropolitan Hockey Club. Inc., 427 U.S. 639, 643 (1976).
For the reasons presented in defendants' memorandum in support and reply, the court finds
that dismissal with prejudice is the appropriate sanction. Each element above has been satisfied as
the court finds: (1) plaintiffs continued failure to comply signifies bad faith; (2) plaintiff has caused
significant prejudice to defendants who have not received any discovery pertaining to foundational
information underlying plaintiffs claims; (3) there is a great need for deterrence in this case where
plaintiff has ignored this court's orders and the Federal Rules of Civil Procedure; and (4) less drastic
sanctions would be ineffective here where plaintiff had a clear warning of the possibility of
dismissal.
In response, plaintiff discloses that he had a personal issue arise in mid-January 2013, which
began to require serious attention on February 23, 2013, and is ongoing. The court is sympathetic

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to plaintiffs circumstances, but review of the record reveals his failures to comply arose long before
January 2013. Furthermore, plaintiff was actively participating in this litigation during part of that
time. 2
CONCLUSION

For the foregoing reasons, defendants' motion for sanctions is GRANTED (DE 55).
Plaintiffs complaint is DISMISSED with prejudice, and the clerk is directed to close this case.

SO ORDERED, this U,f'!f day of April, 2013.

wJ:?I:.IcAN~A;&~~
United States District Judge

2 On January 25, 2013, plaintiff moved to change the location of a settlement conference from Raleigh to
Wilmington referencing his fmancial hardship. On February 11, 2013, parties had settlement negotiations. On February
15, 2013, parties participated in a conference call with magistrate judge.

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