CARTER v. ARCHDALE POLICE DEPARTMENT et al

Filing 77

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 12/1/2014; that Plaintiff pay Defendants' reasonable expenses of $381.00. RECOMMENDED that Defendants' Motion to Dismiss for Lack of Prosecution and Failure to Comply with Court Order (Docket Entry 74 ) be granted. (Sheets, Jamie)

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

JAMES J. CARTER,

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Plaintiff,
v.
ARCHDALE POLICE DEPARTMENT,
et al.,
Defendants.

1:13CV613

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter comes before the undersigned on Defendants’ Motion
to Dismiss for Lack of Prosecution and Failure to Comply with Court
Order (Docket Entry 74), and on the Court’s previous Order granting
expense shifting (Docket Entry 72). In a previous Order, the Court
required Plaintiff to respond to and serve complete and full
responses to Defendants’ discovery requests and to pay Defendants’
reasonable expenses in moving to compel those responses.
Entry 72.)

(Docket

In that regard, the Court ordered Defendants to submit

a statement of their reasonable expenses - which they did (Docket
Entry 73-1) - and for Plaintiff to either file a Notice indicating
agreement

with

the

expenses

or

a

Memorandum

contesting

the

reasonableness of the expenses - which Plaintiff did not (see
Docket Entries

dated

Sept.

17,

2014,

to

present).

Further,

Defendants have filed the instant Motion alleging that Plaintiff
has failed to comply with the Court’s Order to serve full and
complete discovery responses and seeking dismissal of this action.

(Docket Entry 74.)
Motion.

Plaintiff has not responded to the instant

(See Docket Entries dated Oct.

20, 2014, to present.)

The undersigned now enters an Order requiring Plaintiff to pay
Defendants’ reasonable expenses of $381.00, and a Recommendation
that the Court dismiss this action for failing to comply with a
discovery order.1
In compliance with this Court’s prior Order (Docket Entry 72),
Defendants submitted a statement of the reasonable expenses they
incurred in moving to compel discovery responses (Docket Entry 731).

Plaintiff

failed

to

respond

as

directed

by

the

Court.

Therefore, according to the terms of the Court’s previous Order
(see Docket Entry 72 at 3-4), the undersigned finds that Plaintiff
waived his ability to contest the reasonableness of the expenses
and orders Plaintiff to pay Defendants $381.00.
As to Defendants’ instant Motion, it is beyond dispute that
“discovery is a cornerstone of the litigation process . . . .”
Jones v. Goord, No. 95 CIV. 8026(GEL), 2002 WL 1007614, at *1
(S.D.N.Y. May 16, 2002) (unpublished).
essential

obligations

of

providing

Discovery fulfills the
parties

with

critical

information necessary to pursue or defend their claims at trial and
to reduce the possibility of surprise.

1

See Hickman v. Taylor, 329

Because the undersigned recommends dismissal of this action
pursuant to Federal Rule of Civil Procedure 37(b), the undersigned
does not address Defendants’ alternative argument, regarding
failure to prosecute.
2

U.S. 495, 507 (1947). Therefore, “[a] party who flouts [discovery]
orders does so at his own peril[,] as compliance with discovery
orders is necessary to the integrity of the judicial process.”
Sentry Ins. A Mut. Co. v. Brand Mgmt., Inc., 295 F.R.D. 1, 14
(E.D.N.Y. 2013) (alterations in original and internal quotation
omitted), recommendation adopted, id. at 2-8. To ensure compliance
with discovery orders, Federal Rule of Civil Procedure 37(b)
provides that “[i]f a party . . .

fails to obey an order to

provide or permit discovery . . . the court where the action is
pending may issue further just orders.”

Such just orders include

“dismissing the action or proceeding in whole or in part[.]”
R.

Civ.

P.

37(b)(2)(A)(v).

In

evaluating

whether

Fed.

dismissal

reflects the most appropriate sanction, the Court must consider:
“(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. and Loan Ass’n v. Richards &

Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989).
In this case, the factors favor dismissal of Plaintiff’s suit.
First, Plaintiff has failed to comply with this Court’s orders on
two occasions - by not responding to either Defendants’ discovery
requests or Defendants’ statement of reasonable expenses. In fact,

3

Plaintiff has not made any filings with this Court since June 27,
2014 (see Docket Entries dated June 27, 2014, to present) despite
the Court sending notice of its Order (see Docket Entry dated Sept.
17, 2014) and Plaintiff’s right to respond to Defendants’ instant
Motion (Docket Entry 76).

The United States Post Office did not

return any of these items as undeliverable (see Docket Entries
dated Sept. 17, 2014, to present), so the undersigned has no choice
but to find Plaintiff’s silence as willful and in bad faith.
Second, Plaintiff has caused Defendants significant prejudice.

By

failing to respond to any of Defendants’ discovery requests,
Plaintiff has withheld information necessary for Defendants to
proceed

in

this

litigation.

One

cannot

reasonably

expect

Defendants to prepare for trial without fair notice of Plaintiff’s
version of events and supporting evidence.
Third, Plaintiff’s stalwart refusal to participate or respond
to discovery requests embodies a particularly troublesome form of
noncompliance with a discovery order.

By refusing to participate

or respond, Plaintiff intentionally delays the swift administration
of justice, and the Court must deter such activity.

Fourth, and

finally, lesser sanctions will not effectively ensure Plaintiff’s
compliance with future discovery orders.

Despite the Court’s

previous Order to pay Defendants’ reasonable expenses in seeking
the

Motion

expenses,

to

Compel

Plaintiff

and

failed

to

respond

to

comply.

4

to

Defendants’

claimed

Plaintiff’s

failure

demonstrates

that

the

threat

effectively motivate Plaintiff.

of

financial

penalties

do

not

Therefore, the undersigned finds

that only dismissal can address Plaintiff’s non-compliance.

Thus,

all four factors counsel dismissal in this case.
IT

IS

THEREFORE

ORDERED

that

Plaintiff

pay

Defendants’

reasonable expenses of $381.00.
IT IS RECOMMENDED that Defendants’ Motion to Dismiss for Lack
of Prosecution and Failure to Comply with Court Order (Docket Entry
74) be granted.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 1, 2014

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