TILYARD v. O'REILLY AUTO PARTS, INC.

Filing 33

MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 10/24/2012; that Defendant's Motion for Sanctions and Submission to the Court Relating to Fees and Costs (Docket Entry 26 ) be granted in part and denied in part, in t hat the Court: 1) should order Plaintiff to pay Defendant $1,368.00 for the reasonable expenses incurred by Defendant in connection with its Second Motion to Compel (Docket Entry 23 ), pursuant to Federal Rules of Civil Procedure 37(a)(5)(A) an d consistent with the Court's prior Order (see Docket Entry 25 at 7); 2) should sanction Plaintiff, pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), for failing to timely produce the Phonebook as ordered (see Docket Entry 25 at 7) by prohibiting him from utilizing it to make out his case-in-chief and by expressly warning him that any further violation of court orders or the applicable rules will lead to more serious sanctions, up to and including dismissal; and 3) should order, pursuant to Federal Rule of Civil Procedure 37(b)(2)(C), that Plaintiff pay the reasonable expenses, including attorney's fees, Defendant incurred in bringing the instant Motion. (Israel, Lisa)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JONATHAN D. TILYARD,
Plaintiff,
v.
O’REILLY AUTO PARTS, INC.,
Defendant.

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1:11CV236

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge on Defendant’s Motion for Sanctions and Submission
to the Court Relating to Fees and Costs (Docket Entry 26).
Docket Entry dated May 22, 2012.)1

(See

For the reasons that follow,

Generally, “[an] order disposing of [a party’s] [Federal]
Rule [of Civil Procedure] 37 motion for sanctions is undoubtedly a
nondispositive matter . . . .” Kebe ex rel. K.J. v. Brown, 91 F.
App’x 823, 827 (4th Cir. 2004).
However, because the instant
Motion expressly seeks dismissal as a sanction (see Docket Entry 26
at 5 (“Defendant requests that the Court sanction Plaintiff as it
deems appropriate, including but not limited to, dismissing his
lawsuit . . . .”)), the undersigned Magistrate Judge opts to enter
a recommendation in this instance. See 28 U.S.C. § 636(b)(1)(A)
and (B) (providing that magistrate judges may “hear and determine
any pretrial matter pending before the court, except [eight
specified motions, including] a motion . . . to involuntarily
dismiss an action,” but only may “submit to a [district] judge of
the court proposed findings of fact and recommendations for
disposition, by a [district] judge of the court, of any [of the
eight specified] motion[s] [so] excepted” (emphasis added)). In so
doing, the undersigned Magistrate Judge recognizes that some
courts, including in this Circuit, have taken the view that the
sanction selected by a Magistrate Judge (not the sanction sought by
a litigant) controls whether the Magistrate Judge may enter an
order (or only a recommendation) on a motion for sanctions under
1

(continued...)

the Court should grant in part and should deny in part the instant
Motion, in that the Court:
1) should order Plaintiff to pay Defendant $1,368.00 for the
reasonable expenses Defendant incurred with its Second Motion to
Compel (Docket

Entry

23),

pursuant

to

Federal

Rule

of Civil

Procedure 37(a)(5)(A) and consistent with the Court’s prior Order
(see Docket Entry 25 at 7);
2) should sanction Plaintiff, pursuant to Federal Rule of
Civil Procedure 37(b)(2)(A), for failing to timely produce a
document as previously ordered (see Docket Entry 25 at 7), by
prohibiting him from utilizing said document to make out his casein-chief (rather than by dismissing the case), as well as by
expressly warning him that further misconduct will lead to severe
(potentially case-dispositive) sanctions; and
3) should order that, pursuant to Federal Rule of Civil
Procedure 37(b)(2)(C), Plaintiff must pay Defendant’s reasonable
expenses, including attorney’s fees, related to the instant Motion.

1

(...continued)

Federal Rule of Civil Procedure 37. See, e.g., Powell v. Town of
Sharpsburg, No. 4:06CV117F(2), 2009 WL 863348, at *6-7 (E.D.N.C.
Mar. 27, 2009) (unpublished) (citing Gomez v. Martin Marietta
Corp., 50 F.3d 1511, 1519-20 (10th Cir. 1995), and Segal v. L.C.
Hohne Contractors, Inc., 303 F. Supp. 2d 790, 792-95 (S.D.W. Va.
2004)). Those decisions, however, do not appear to have considered
the plain language of Section 636(b)(1)(A) excepting motions “to
involuntarily dismiss an action” from the range of pretrial matters
as to which a Magistrate Judge may enter an order. See id.
-2-

Background
Plaintiff commenced this action by filing a Complaint alleging
claims against Defendant for slander (Docket Entry 3, ¶¶ 13-17),
sexual discrimination (id. ¶¶ 18-21), and retaliatory discharge
(id. ¶¶ 22-25).

In connection with these claims, Defendant served

Plaintiff with discovery requests.

(See Docket Entry 14 at 1.)

Plaintiff failed to respond to those requests within the time
required (see id. at 2; see also Docket Entry 29 at 7) and
Defendant thus moved to compel (see Docket Entry 13).

Plaintiff

then responded that he (on that day) “served on counsel for
[D]efendant . . . answers to interrogatories and responses to
request for production of documents, without lodging any objections
or refusing to answer any of the interrogatories and requests.”
(Docket Entry 15 at 1; see also Docket Entry 29 at 7.)

The Court,

per United States Magistrate Judge P. Trevor Sharp, thereafter
declined to take further action.

(Docket Entry 17 at 2.)

Subsequently, on February 3, 2012, Defendant filed a Second
Motion to Compel after, in the course of Plaintiff’s deposition (on
January 2, 2012), Plaintiff identified “documents that are in [his]
possession, custody and control, relevant to this matter, and
responsive to Defendant’s prior discovery requests, but which have
not yet been produced to Defendant[.]”

(Docket Entry 23 at 2.)

Said documents included a “notepad and/or black phonebook [(the
‘Phonebook’)] in which Plaintiff listed each potential witness and
-3-

their contact information and made notes about what each particular
potential

witness

told

him

they

witnessed.”

(Id.

at

3).2

Defendant’s Second Motion to Compel also requested “costs and fees
associated with [its filing].”

(Id. at 4.)

Additionally, given

Plaintiff’s failure to timely answer discovery, Defendant moved for
an extension of the discovery deadline.

(See Docket Entry 21).

After Plaintiff failed to respond to the foregoing Motions
(see Docket Entry 25 at 3-4), the Court (per the undersigned
Magistrate Judge) ordered Plaintiff to produce, inter alia, the
Phonebook (by March 23, 2012) and to pay Defendant’s reasonable
expenses in bringing the Second Motion to Compel (id. at 7).

As to

that latter matter, the Court directed Defendant to serve Plaintiff
with an expense statement and ordered that, if he contested the

Specifically, in his deposition, Plaintiff testified that he
had contact information for witnesses “in [his] [P]honebook at
home.” (Docket Entry 24-4 at 5-6; accord id. at 7-8 (“Q And what
– so you have this contact information in a phonebook at home; is
that right, sir? A Yes, sir. Q What kind of phonebook? A Like
a little black phonebook. Q A rolodex type of thing? A No, it’s
just a – it’s got like a monthly or yearly planner in it.”).)
These witnesses allegedly could “corroborate [Plaintiff’s]
statement that they were told [Plaintiff] w[as] terminated because
[he] had taken something[.]” (Id. at 10.) According to Plaintiff,
in addition to the witnesses’ contact information, he “put a little
note down next to their name about what they had told [him] or
informed [him] about.”
(Id. at 11.)
Defendant previously had
requested such information and documents in discovery. (See Docket
Entry 13-1 at 10, 15-17, 28.) Plaintiff acknowledged that he “was
probably supposed to get [such materials] to [his attorney] and
[he] forgot to do so.” (Docket Entry 24-4 at 7.) Nonetheless,
Plaintiff insisted that he could “still provide them.”
(Id.)
Indeed, when pressed about the urgency of the matter, given the
impending discovery deadline, Plaintiff averred that he could “get
it to [his attorney] today.” (Id. at 9.)
2

-4-

reasonableness of the reported expenses, Plaintiff must file a
memorandum setting out his position (by April 15, 2012).
7-8.)

(Id. at

That Order also extended the discovery period (to April 16,

2012) and continued the trial (from the July 2012 Civil Master
Calendar to the next available setting).

(Id. at 8.)

On March 30, 2012, Defendant timely served Plaintiff with its
expense statement related to the Second Motion to Compel.
Docket Entry 27-2; see also Docket Entry 27 at 5.)3

(See

Plaintiff did

not file a memorandum objecting to the reasonableness of the cited
expenses.

(See Docket Entries dated March 30, 2012, to present.)

Defendant thereafter filed the instant Motion asserting that, “on
April 16, 2012, more than three weeks after the Court’s deadline to
produce [it], Plaintiff served on Defendant the [Phonebook] that
Plaintiff originally admitted to having in his deposition on
January 2, 2012.”

(Docket Entry 26 at 4.)

To support that

assertion, Defendant appended to its supporting brief a copy of a
letter addressed to its counsel from Plaintiff’s counsel dated
April 16, 2012, stating as follows:
At long last! The fabled [Phonebook]! I saw [it] in its
original form and can attest that everything in [it] has
been copied and is included in this enclosure.
[Plaintiff] lost the [Phone]book for a period of time,
and that is why I told you in recent correspondence we
could not produce it.
The book was found and

Defendant therein claimed entitlement to $1,368.00.
Docket Entry 27-2 at 5.)
3

-5-

(See

[Plaintiff’s mother] testified at her deposition that it
was available.
I am sorry about all the confusion.
(Docket Entry 27-3 at 2 (emphasis added).)
Plaintiff subsequently responded to the instant Motion, in
relevant part, by reporting, consistent with the above-quoted
letter, that he “lost the diary or notes, that are now referred to
as the ‘[Phone]book.’

When the deposition of [his] mother was

taken on March 29, 2012, she testified that the [Phone]book had
been found. The [Phone]book was provided to [P]laintiff’s counsel,
and he promptly copied it and sent it to opposing counsel with the
covering letter which [Defendant] attached [to its brief supporting
the instant Motion].”

(Docket Entry 29 at 2 (emphasis added).)4

Defendant has replied.

(Docket Entry 31.)
Discussion

“If a party . . . fails to obey an order to provide or permit
discovery, . . . the [C]ourt . . . may issue further just orders.”
Fed. R. Civ. P. 37(b)(2)(A).

Potential sanctions include orders:

(i) directing that the matters embraced in the order or
other designated facts be taken as established for
purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from
introducing designated matters in evidence;

Plaintiff also therein “recognize[d] that ultimately he will
be liable for attorneys’ fees that have been assessed against him
by prior [O]rder of the [C]ourt.” (Docket Entry 29 at 3.)
4

-6-

(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is
obeyed;
(v) dismissing the action or proceeding in whole or in
part;
(vi) rendering a default judgment against the disobedient
party; or
(vii) treating as contempt of court the failure to obey
any order except an order to submit to a physical or
mental examination.
Id. (emphasis added).

“Instead of or in addition to the orders

above, the [C]ourt must order the disobedient party, the attorney
advising that party, or both to pay the reasonable expenses,
including attorney’s fees, caused by the failure, unless the
failure was substantially justified or other circumstances make an
award of expenses unjust.”

Fed. R. Civ. P. 37(b)(2)(C) (emphasis

added).
The Court has discretion regarding whether, and to what
extent, to impose sanctions under Federal Rule of Civil Procedure
37(b)(2)(A).

See National Hockey League v. Metropolitan Hockey

Club, Inc., 427 U.S. 639, 642-43 (1976).
discretion

without

bounds

or

limits

“It is not, however, a

but

one

to

be

exercised

discreetly and never when it has been established that failure to
comply has been due to inability, and not to wilfulness, bad faith,
or any fault of the non-complying party.”

Wilson v. Volkswagen of

Am., Inc., 561 F.2d 494, 503 (4th Cir. 1977) (internal footnote,
-7-

parentheses, and quotation marks omitted).

Moreover, the Court

must

in

act

with

dispositive

particular

sanctions.

circumspection

See

id.

at

imposing

503-04.

case-

Accordingly,

in

exercising its discretion under Federal Rule of Civil Procedure
37(b)(2)(A), the Court generally must consider:

“(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 noncompliance, and (4) whether
less drastic sanctions would have been effective.”

Anderson v.

Foundation for Advancement, Educ, & Emp’t of Am. Indians, 155 F.3d
500, 504 (4th Cir. 1998).
In the “Argument” portion of its brief in support of the
instant Motion, Defendant directly addressed only one of the
foregoing factors, i.e., prejudice.

(See Docket Entry 27 at 6-8.)

Regarding that matter, Defendant asserted (without elaboration)
that, by “disregard[ing] the Court’s March 23, 2012 deadline [for
production

of

his

Phonebook]

and

produc[ing]

[that]

critical

document on the last day of the discovery period, [Plaintiff]
greatly prejudic[ed] Defendant’s ability to prepare a defense in
this matter and meaningfully examine him during his deposition.”
(Id. at 8.)

In said brief’s “Statement of the Relevant Facts,”

Defendant explained somewhat more fulsomely that:

“What was

particularly prejudicial to Defendant, however, was that [the
Phonebook] was not simply a notepad with witness information in it,
-8-

but rather was a daily diary of Plaintiff during his tenure with
Defendant, including references to nearly all of the events listed
in Plaintiff’s Complaint.”

(Id. at 4-5; see also id. at 5

(describing Plaintiff’s failure to produce the Phonebook by the
Court-imposed deadline as “clearly prejudicial to Defendant” and
asserting that such conduct “critically impaired the ability of
Defendant

to

meaningfully

deposition”).)

examine

Plaintiff

during

his

None of Defendant’s filings concerning the instant

Motion, however, describe in any way how earlier production of the
Phonebook would have altered defense preparation or the conduct of
Plaintiff’s deposition.

(See id. at 1-9; Docket Entry 26 at 1-7;

Docket Entry 31 at 1-5.)

Nor did Defendant ask that, in the event

the Court opted against dismissal, the Court allow the re-opening
of Plaintiff’s deposition and/or permit any other discovery beyond
the deadline.

(See id.)

Under these circumstances, no basis

exists to find that Plaintiff’s belated production of the Phonebook
significantly prejudiced Defendant.
As to the other Anderson factors (i.e., bad faith, need for
deterrence, and efficacy of lesser sanctions), the Court should
note that, although Defendant did not identify such factors by name
in connection with its instant Motion, it did cite matters relevant
to them.

For example, Defendant correctly observed that Plaintiff

“blatant[ly]

disregard[ed]”

both

discovery

deadlines

and

the

Court’s prior Order requiring him to produce the Phonebook by March
-9-

23, 2012.

(Docket Entry 27 at 6.)

A review of the time line of

relevant events illustrates the point:
1) on January 2, 2012, Plaintiff swore that he had the
Phonebook “at home,” he knew he should have given it to his counsel
earlier in response to Defendant’s discovery requests, and he could
provide it to his counsel that day (Docket Entry 24-4 at 5-11);
2) after Defendant filed its Second Motion to Compel on
February 3, 2012, complaining that Plaintiff still had not produced
the Phonebook, Plaintiff did not respond as required by the Court’s
Local Rule 7.3(f) (see Docket Entries dated Feb. 3, 2012, to Mar.
16, 2012; see also Docket Entry 25 at 3-4);
3) when the Court’s deadline of March 23, 2012 (imposed via
Order dated March 16, 2012) for Plaintiff to produce the Phonebook
came, Plaintiff neither did so, nor moved for an extension of time
to comply or for other relief (see Docket Entry 27 at 5-6 (citing
Docket Entry 27-2 at 2); Docket Entry 29 at 2); and
4) even after Plaintiff’s mother testified, on March 29, 2012,
that the Phonebook “was available” (Docket Entry 27-3 at 2; see
also Docket Entry 29 at 2), Plaintiff waited 18 more days until the
very last day of the extended discovery period to provide it to
Defendant (see Docket Entry 27-3 at 2).
Faced with this damning chronology, Plaintiff now simply
asserts, in unsworn and unsupported fashion, that he “lost” the
Phonebook for some unspecified “period of time.”
-10-

(Docket Entry 29

at 3.)

The Court should lend no weight to such an undeveloped,

unverified assertion.5

Moreover, even if the Court chose to give

any credence to Plaintiff’s claim in this regard, that explanation
would not excuse his failure to seek either an extension of time to
comply with (or other relief from) the Court’s Order requiring the
Phonebook’s production by March 23, 2012.

Nor would Plaintiff’s

contention that, at some point, he had “lost” the Phonebook justify
his delay in producing it from March 29, 2012 (when his mother
testified the Phonebook “was available”), to April 16, 2012 (when
his counsel finally forwarded it to Defendant’s counsel).
In

sum,

the

record

does

not

establish

that

Plaintiff’s

“failure to comply has been due to inability,” Wilson, 561 F.3d at
503; instead, the record reflects a course of conduct by Plaintiff
that bespeaks bad faith, calls out for deterrence, and indicates
lesser sanctions (such as mere admonitions) likely would not have
sufficient impact, see United States v. Barker, No. 3:06CR373, 2010
WL

2650885,

at

*3

(W.D.N.C. July 1,

2010)

(unpublished)

(“A

non-complying party has acted in bad faith where he has failed to
comply with a court ordered [discovery device] of which he had
actual notice and where his failure to comply was ‘willful’ and not

Notably, in the only other communication from Plaintiff about
the Phonebook in the record (i.e., a letter from his counsel to
Defendant’s counsel dated March 13, 2012), Plaintiff did not
describe the Phonebook as “lost,” but instead claimed (without any
oath or affirmation and in a conclusory, ambiguous manner) that
“[h]e d[id] not have [it] . . . .” (Docket Entry 27-1 at 2.)
5

-11-

due to his inability to [comply].”); Plant v. Merrifield Town Ctr.
Ltd. P’ship, Nos. 1:08CV374(TSE/JFA), 1:08CV566, 2009 WL 6082878,
at *6 (E.D. Va. Dec. 23, 2009) (unpublished) (“In this circuit, bad
faith includes willful conduct, where the [litigant] ‘clearly
should have understood his duty to the court’ but nonetheless
‘deliberately disregarded’ it.” (quoting Rabb v. Amatex Corp., 769
F.2d

996,

1000

(4th

Cir.

1985))),

recommendation

adopted

in

relevant part, 711 F. Supp. 2d 576, 581–88 (E.D. Va. 2010);
Progressive Minerals, L.L.C. v. Rashid, No. 5:07–CV–108, 2009 WL
2761295, at *4 (N.D.W. Va. Aug. 28, 2009) (unpublished) (“Rules and
deadlines are made to be followed.

This Court cannot allow this,

or

court

any

[litigant],

rules. . . .

to

disobey

orders

and

discovery

[O]thers contemplating this type tactic [must]

understand that it is an unacceptable practice to fail to [provide
discovery], and especially in response to a court order.”).
Plaintiff appears to recognize that his violation of the
Court’s Order to produce the Phonebook by March 23, 2012, warrants
some sanction.
opposes

in

(See Docket Entry 29 at 1 (stating that “Plaintiff
part

[D]efendant’s

motion

for

sanctions”

and

“acknowledg[ing] delinquency in responding to interrogatories and
production requests” (emphasis added)).)

However, he offers a

theory of mitigation in an apparent effort to soften the sanction
selected by the Court; more specifically, Plaintiff asserts that
his

failures

to

meet

discovery-related
-12-

obligations

“can

be

explained in large part by [his] extreme depression, anxiety, and
other medical

problems

stemming

from

[D]efendant’s

relentless

sexual harassment of him and ultimate wrongful dismissal of him as
its employee.”

(Id.)

This approach falls short for the same

reasons as does Plaintiff’s claim that he “lost” the Phonebook:
1) Plaintiff has come forward with no evidence that any mental
or physical health issue impaired his capacity to comply with the
Court’s prior Order (or to respond to discovery) (see id.);6 and
2) Plaintiff has failed to explain why, if his mental or
physical health affected his ability to produce the Phonebook by
the Court’s deadline (or at any earlier point), his counsel could
not have sought an extension of time to comply (see id.).
Notwithstanding

the

inadequacy

of

Plaintiff’s

mitigation

theory, the question remains as to how the Court should sanction
his willful disregard of the prior Order directing him to produce
the Phonebook by March 23, 2012.
sanction, dismissal of the action.

Defendant seeks the ultimate
(See Docket Entry 26 at 5.)

As

support for that position, Defendant has cited one case, Lynch v.
Novant Med. Grp., Inc., No. 3:08CV340, 2009 WL 2105829 (W.D.N.C.
July 13, 2009) (unpublished), recommendation adopted, 2009 WL

Plaintiff effectively acknowledged this deficiency by stating
that his counsel was “in the process of rounding up hospital
records and proposed testimony from [his] treating physicians [and
that] . . . appropriate filings will be made with the [C]ourt.”
(Docket Entry 29 at 1-2.) Moreover, the Docket reflects no such
filings. (See Docket Entries dated May 3, 2012, to present.)
6

-13-

2915039 (W.D.N.C. Sept. 8, 2009) (unpublished), in which a court
sanctioned

a

litigant

under

Federal

37(b)(2)(A) by dismissing the action.

Rule

of

Civil

Procedure

(Docket Entry 31 at 3.)

In

that case, however, the plaintiff who disobeyed the discovery order
“ha[d] been warned explicitly that failure to comply . . . would
result in the imposition of sanctions and possibly dismissal of
th[e]

lawsuit,”

Lynch,

2009

WL

2915039,

at

*7,7

and

“the

[d]efendant ha[d] not been able to obtain any meaningful discovery
from the [p]laintiff,” id. (emphasis added).

Here, by contrast,

the Court had not had cause to issue a warning of that sort and
Defendant has not suffered a total denial of meaningful discovery.
Given the absence of those or other comparably aggravating
considerations in this case (as well as the lack of significant,
demonstrated prejudice), the Court should decline to sanction
Plaintiff by dismissing this action.

See generally Hathcock v.

Navistar Int’l Transp. Corp., 53 F.3d 36, 40 (4th Cir. 1995)
(cautioning district courts not to resort too readily to casedispositive sanctions).

Instead, an evidentiary sanction, such as

prohibiting Plaintiff from utilizing the Phonebook to make out his
case-in-chief, more proportionally addresses his misconduct.

In

As the recommendation in the cited case recognized, “[t]he
Fourth Circuit has emphasized the significance of . . . [a] warning
to the offending party of what may follow prior to dismissing the
action for failure to comply with discovery obligations.” Lynch,
2009 WL 2105829, at *4 (citing, inter alia, Hathcock v. Navistar
Int’l Transp. Corp., 53 F.3d 36, 40 (4th Cir. 1995)).
7

-14-

addition, the Court should place Plaintiff on notice that it will
deal most severely with any further noncompliance.
Finally, “the [C]ourt must order [Plaintiff] . . to pay the
reasonable expenses, including attorney’s fees, caused by [his]
failure [to comply with the Court’s prior Order], unless the
failure was substantially justified or other circumstances make an
award of expenses unjust.”
added).
(much

Fed. R. Civ. P. 37(b)(2)(C) (emphasis

For reasons previously discussed, the record reflects no
less

a

noncompliance.

substantial)

justification

for

Plaintiff’s

See Decision Insights, Inc. v. Sentia Grp., Inc.,

311 F. App’x 586, 599 (4th Cir. 2009) (“A legal position is
‘substantially justified’ if there is a ‘genuine dispute’ as to
proper resolution

or

if

‘a

reasonable

person

could

think it

correct, that is, if it has a reasonable basis in law and fact.’”
(quoting Pierce v. Underwood, 487 U.S. 552, 565–66 n. 2 (1988))).
As to circumstances that might make unjust an order requiring him
to reimburse Defendant’s reasonable expenses, Plaintiff has offered
only the bare assertion that he “is completely impoverished and
impecunious, and has no way to pay any of these amounts.”
Entry 29 at 3.)

(Docket

Even if the Court overlooked the complete lack of

any evidentiary foundation for Plaintiff’s claim of poverty, it
should find that persuasive authority renders said claim immaterial
in this context.

See, e.g., Jumpp v. Jerkins, Civil No. 08-6268,

2011 WL 5325616, at *4 (D.N.J. Nov. 3, 2011) (unpublished) (“To
-15-

accept indigence as a reason for not applying a Rule 37 sanction of
attorney’s fees would undermine the purpose of the rule.

Rule 37

sanctions are penalties for violating the discovery rules, and such
penalties are meant to deter future conduct and compensate for the
collateral damage that, by a party’s actions, is levied on a party
that must move to enforce the rule.

The failure to sanction

indigent plaintiffs can only result in incentivizing abuse of the
discovery system because they can impose costs upon their opponents
without fear of recompense.”); Toner v. Wilson, 102 F.R.D. 275, 276
(M.D. Pa. 1984) (“[W]hile [the plaintiff’s] poverty may present the
[d]efendants

with

a

problem

in

collecting

any

award,

[the

plaintiff’s] poverty does not make an award of expenses unjust.”).
The Court thus should order Plaintiff to pay Defendant’s reasonable
expenses, including attorney fees, related to the instant Motion.8

Defendant, however, has not cited any authority that would
support its request that the Court delay summary judgment briefing
(and presumably trial) until Plaintiff has paid such expenses.
(See Docket Entry 26 at 5, 6; Docket Entry 27 at 7, 8; Docket Entry
31 at 3.)
Moreover, the Court has an independent interest in
seeing that this case moves forward on schedule.
See, e.g.,
Kinetic Concepts, Inc. v. ConvaTec Inc., No. 1:08CV918, 2010 WL
1418312, at *4 (M.D.N.C. Apr. 2, 2010) (unpublished) (“There is a
strong tradition in this district of enforcing case management
deadlines to ensure that trials take place as scheduled.”);
Robinson v. Presbyterian Wound Care Ctr., No. 3:07CV21FDW, 2008 WL
2789341, at *1 (W.D.N.C. July 10, 2008) (unpublished) (“The
management of the Court’s docket is of the utmost importance to the
carrying out of justice . . . .”).
8

-16-

Conclusion
Plaintiff has not contested the reasonableness of the expenses
Defendant claimed in connection with its Second Motion to Compel.
Pursuant to the Court’s prior Order, Plaintiff thus must pay
Defendant $1,368.00.

The Court also should sanction Plaintiff for

failing to comply with the prior Order’s deadline for production of
the

Phonebook.

The

relevant

considerations,

sustain Defendant’s call for dismissal.
impose

an

evidentiary

sanction,

however,

cannot

Instead, the Court should

should

mandate

payment

of

Defendant’s reasonable expenses associated with the instant Motion,
and should caution Plaintiff that further failures on his part will
result in more severe (potentially case-dispositive) sanctions.
Under the circumstances of this case, such action adequately will
serve “[t]he purpose of [Federal] Rule [of Civil Procedure] 37
[i.e.] . . . to punish deliberate noncompliance with the federal
rules of discovery and to deter such conduct in the future,” Zornes
v. Specialty Indus., Inc., No. 97-2337, 166 F.3d 1212 (table), 1998
WL 886997, at *9 (4th Cir. Dec. 21, 1998) (unpublished).
IT

IS

THEREFORE

RECOMMENDED

that

Defendant’s

Motion

for

Sanctions and Submission to the Court Relating to Fees and Costs
(Docket Entry 26) be granted in part and denied in part, in that
the Court:
1) should order Plaintiff to pay Defendant $1,368.00 for the
reasonable expenses incurred by Defendant in connection with its
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Second Motion to Compel (Docket Entry 23), pursuant to Federal Rule
of Civil Procedure 37(a)(5)(A) and consistent with the Court’s
prior Order (see Docket Entry 25 at 7);
2) should sanction Plaintiff, pursuant to Federal Rule of
Civil Procedure 37(b)(2)(A), for failing to timely produce the
Phonebook as ordered (see Docket Entry 25 at 7) by prohibiting him
from utilizing it to make out his case-in-chief and by expressly
warning him that any further violation of court orders or the
applicable rules will lead to more serious sanctions, up to and
including dismissal; and
3) should order, pursuant to Federal Rule of Civil Procedure
37(b)(2)(C), that Plaintiff pay the reasonable expenses, including
attorney’s fees, Defendant incurred in bringing the instant Motion.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 24, 2012

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