WILSON v. FAIRFIELD INN SUITES - MARRIOTT, RDU

Filing 59

MEMORANDUM OPINION AND RECOMMENDATION signed by MAGISTRATE JUDGE L. PATRICK AULD on 10/20/2017. IT IS THEREFORE RECOMMENDED that the Dismissal Motion 53 be granted in part and denied in part as follows: this action should be dismissed with prejudice and Defendant's request to stay the deadline for filing dispositive motions should be denied as moot.(Coyne, Michelle)

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

NATHAN E. WILSON,
Plaintiff,
v.
FAIRFIELD INN SUITES MARRIOTT, RDU,
Defendant.

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1:16cv899

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge for a recommendation on “Defendant’s Motion to
Dismiss

Plaintiff’s

Complaint

for

Failure

to

Participate

in

Discovery and Failure to Prosecute and Motion to Stay Dispositive
Motion Deadline” (Docket Entry 53) (the “Dismissal Motion”).1

For

the reasons that follow, the Court should grant the dismissal
request and should deny as moot the stay request.
FACTUAL AND PROCEDURAL HISTORY
In July 2016, Nathan E. Wilson (the “Plaintiff”) initiated
this action by filing (i) a Complaint (Docket Entry 2) against
Fairfield Inn Suites - Marriot, RDU (the “Defendant”), (ii) an
application to proceed in forma pauperis (Docket Entry 1) (the “IFP
Application”), and (iii) a motion to appoint counsel (Docket Entry

1 For legibility purposes, this Opinion generally omits allcap font in quotations from the parties’ materials.

3) (the “First Appointment Motion”).2

Concluding that, “[i]n its

present form, [the] Complaint does not state a claim, but instead
merely identifies a cause of action and directs the Court to some
attachments, none of which set forth a coherent set of factual
allegations that plausibly could support the identified cause of
action,” the Court (per the undersigned) entered an order deferring
ruling

on

opportunity

the
to

08/08/2016.”

IFP

Application

submit

an

and

amended

“affording
complaint

(Text Order dated July 15, 2016.)

Plaintiff
on

or

an

before

In August 2016,

Plaintiff filed an amended complaint (Docket Entry 7), and the
Court (per the undersigned) granted the IFP Application (see Docket
Entry 8 at 1).
Because Plaintiff maintained that “[he was] NOT qualified to
[a]gree to any discovery schedule until the [C]ourt rule[d] on
[his] motion for court appointed counsel” (Docket Entry 19 at 1
(emphasis in original)), the case proceeded to an Initial Pretrial
Conference on October 31, 2016, at which Plaintiff asked “the
[C]ourt to rule on [his] request for court appointed counsel in the
interest of adequ[a]te preparation for discovery and tr[ia]l”

2
As grounds for appointment of counsel, the First
Appointment Motion asserts that (i) “Plaintiff has exercised
considerable effort over the previous months in the pursuit of
professional representation,” (ii) the “case has considerable
consequences for the [P]laintiff and over 1000 hourly workers with
the Defendant,” and (iii) “[t]he interests of the United States are
served in the Court appointment of professional representation.”
(Docket Entry 3 at 1 (emphasis in original).) [Citations herein to
Docket Entry pages utilize the CM/ECF footer’s pagination.]
2

(id.).

(See also Minute Entry dated Oct. 31, 2016.)

“Plaintiff

has

not

established

the

Finding that

requisite

exceptional

circumstances warranting [such appointment],” the Court (per the
undersigned) denied the First Appointment Motion (First Text Order
dated Oct. 31, 2016), and issued a case-management order (Second
Text Order dated Oct. 31, 2016 (the “Scheduling Order”)), which
adopted “Defendant’s Proposed Discovery Plan” (Docket Entry 18 at
1),
with the following modifications, as agreed to and/or
ordered by the Court after argument at the hearing held
this day: 1) the parties shall serve Initial Disclosures
required by Federal Rule of Civil Procedure 26(a)(1) by
11/30/2016; . . . and 3) the Court will not order
mediation at this time, but the parties shall file a
Joint Status Report setting out their shared or
individual views about the advisability of mediation
and/or the identity of an appropriate mediator by
11/30/2016.
(Second Text Order dated Oct. 31, 2016.) The Scheduling Order thus
established a deadline for completing discovery of April 30, 2017.
(See Docket Entry 18 at 2; see also Docket Entry dated Nov. 1,
2016.)
Pursuant to the Scheduling Order, Defendant filed a mediation
status report (Docket Entry 20 (the “Defendant’s Report”)), which
detailed developments in the case following the Initial Pretrial
Conference,
‘Informal

including
Brief’

with

that
the

“Plaintiff
Fourth

ha[d]

Circuit

since

Court

of

filed

an

Appeals

concerning the denial of his request for appointed counsel” (id. at
2). Defendant’s Report also attached correspondence from Plaintiff
3

to Defendant’s counsel dated November 14, 2016, in which Plaintiff
expressed reservations regarding the cost of mediation (Docket
Entry 20-1 (the “November Letter”) at 2-3) and stated that “[he
was] continuing to consider compliance with the thirty day time
line for a list of witnesses and documents to support [his] claims”
(id. at 3).

Given these developments, “Defendant request[ed] that

the Court excuse the parties from participating in mediation.”
(Docket

Entry

20

at

2.)

Plaintiff

filed

an

objection

to

Defendant’s request (see Docket Entry 22 at 1-2), in connection
with which he submitted a copy of his Informal Brief (see id. at 4
(containing certificates of service for Plaintiff’s “[I]nformal
[B]rief to the Fourth Circuit regarding [his] motion for court
appointed counsel denied October 31, 2016,” and “‘Objection’ to
Defense Motion, Report to Be ‘Excused’ from Mediation” (emphasis in
original)); see also Docket Entry 23 at 2-3, Docket Entry 23-3 at
1).3

The Clerk’s Office construed Plaintiff’s submission of the

Informal Brief as a notice of appeal from the order denying the
First Appointment Motion.
On

January

appointment

of

17,

(See Docket Entry dated Dec. 29, 2016.)

2017,

counsel

and

Plaintiff
extension

Defendant’s discovery requests.

submitted
of

time

a
to

motion
respond

for
to

(Docket Entry 26 (the “Second

Appointment Motion”) at 1.) As grounds for appointment of counsel,

3
The November Letter appears as “Attachment C” to the
Informal Brief. (See Docket Entry 23 at 6-7.)
4

the Second Appointment Motion asserted that, “[u]ntil such time as
court appointed counsel is provided[,] Plaintiff does not have the
experience, education[,] or economic ability to respond to these
[discovery] requests in a manner that does not compromise this pro
se Plaintiff.”

(Id.)

On January 27, 2017, the Court (per the

undersigned) denied the Second Appointment Order, ruling, inter
alia, that:
To the extent Plaintiff seeks an order indefinitely
extending his obligation to respond to pending (or
future) discovery requests until the Court appoints him
counsel, the Court denies that request, but without
prejudice to Plaintiff presenting a future motion
requesting a finite (reasonable) amount of additional
time to respond to discovery requests. . . . To the
extent Plaintiff seeks an order appointing counsel for
him based on the same rationale the Court thoroughly
considered and addressed previously, the Court denies
relief, but without prejudice to Plaintiff presenting a
future motion raising any new grounds that would warrant
appointment of counsel.
(Text Order dated Jan. 27, 2017.)
On February 24, 2017, Plaintiff submitted another request for
appointment of counsel and extension of his discovery deadlines.
(See Docket Entry 31 (the “Third Appointment Motion”) at 3.)

In

the Third Appointment Motion, “pro se Plaintiff . . . respectfully
request[ed] 180 days from this date to respond to initial discovery
requests and serve initial discovery requests to Defendant in
preparation for trial.”

(Id. at 1.)

In support of that request,

Plaintiff asserted that “[t]he definitive time-line . . . . allows
the Court and referral to the Fourth Circuit to rule on Plaintiff’s

5

request

for

court

appointed

counsel.”

(Id.

(emphasis

in

original).) “Plaintiff further request[ed] court appointed counsel
for preparation of discovery and trial.

Defendant has demanded a

deposition of the Plaintiff by April 2017.

In accordance with an

original trial schedule set October 31, 2016, this schedule must be
reset based on a calendar for trial established for after January
2018 at a time and place to be yet determined.”
“Plaintiff
appointed

object[ed]
counsel

compromise
disability,

the

is

case

to

this

deposition

provided
of

for

Plaintiff

inexperience[,]

and

(Id.)4

demand

preparation
due

to

education.”

Moreover,

until

that

court

does

difficulties
(Id.)

not
with

Finally,

Plaintiff maintained that “[t]he only way to prepare for this
E.E.O.C. action, discovery, deposition[,] and trial is with court
appointed counsel.”

(Id. at 2 (emphasis in original).)

“In

summary, [Plaintiff] respectfully request[ed] . . . a 180 day timeframe

[be]

appointment

allowed
of

for

counsel”

discovery
as

well

in

this

as

matter

“[f]urther

and

court

delay

of

Defendant[’s] demand of depositions until further ruling on this
motion and further ruling on ‘Informal Brief’ to the Fourth Circuit
. . . filed February 6, 2017.”

(Id. at 3.)

The Court (per the undersigned) denied the Third Appointment
Motion,

explaining

that

the

requested

extension

would

delay

4 In January 2017, the Clerk set this matter for trial on
January 8, 2018. (See Docket Entry 27 at 1.)
6

completion of summary judgment briefing until after the scheduled
trial date.

(See Docket Entry 34 (the “Appointment Order”) at 3.)

The Appointment Order further explained that the grounds upon which
Plaintiff sought the extension — “‘allow[ing] the Court and . . .
the Fourth

Circuit

to

rule

on

Plaintiff’s

request

for

court

appointed counsel’” (id. (ellipsis in original)) — lacked merit.
In particular, the Appointment Order observed that Plaintiff cannot
“obtain interlocutory review of the counsel appointment issue in
the Fourth Circuit” (id. (collecting cases))5 and that the Third
Appointment

Motion

failed

to

“show

exceptional

circumstances

entitling Plaintiff to appointment of counsel” (id. at 4; see
also id. at 4-5 (analyzing proffered grounds for appointment)).
In response to that denial, Plaintiff submitted a motion
requesting “Court Supervision of [his] Deposition.”
35 at 1.)

(Docket Entry

In relevant part, that motion states:

Plaintiff has submitted that on October 31, 2016[,] the
[C]ourt extended discrimination under Color of Law in not
conducting a requisite examination of extenuating
circumstances in accordance with the A.D.A. [i]n the
denial of court appointed counsel to Plaintiff. Court
supervision and monitoring of the Defendant Demand for
Deposition creates further opportunity to conduct a
requisite examination for extenuating circumstances and
mitigate the extension of discrimination concerns of
Plaintiff.

5
The Fourth Circuit subsequently dismissed Plaintiff’s
appeal (see Docket Entries 44, 45), holding that “[t]he orders
[Plaintiff] s[ought] to appeal [we]re neither final orders nor
appealable interlocutory or collateral orders” within the Fourth
Circuit’s jurisdiction. (Docket Entry 44 at 2.)
7

(Id. (emphasis in original).)

The Court (per the undersigned)

promptly denied Plaintiff’s deposition supervision request.

(Text

Order dated Mar. 14, 2017.)
That same day, Defendant moved to compel Plaintiff’s responses
to Defendant’s “First Set of Interrogatories and First Set of
Requests for Production” (the “Written Discovery”), which Defendant
served upon Plaintiff on December 30, 2016 (Docket Entry 37 (the
“First Motion to Compel”) at 2).
1.)

(See Docket Entries 37, 38, 38-

In response to the First Motion to Compel, Plaintiff filed a

motion for “Extension of Time to Answer Defendant[’s] Discovery
Demands . . . and Request for Further Review of Court Advance of
Discrimination under Color of Law and Court Failure to Conduct
Requisite Examination [o]f Extenuating Circumstances in Denial of
Court Appointed Counsel in Violation of the ADA.” (Docket Entry 39
at 1 (emphasis in original).)

In relevant part, that motion

requested a ninety-day extension of time to answer the Written
Discovery (id. at 1) and “further object[ed] to Defendant[’s]
demands for discovery until such time as professional counsel i[s]
available to avoid the fatal compromise of this case due to
Plaintiff’s

difficulties

with

disability,

experience[,]

and

education” (id. at 2; see also id. (“Plaintiff further objects to
Defendant’s discovery demands until such time as this pro se
Plaintiff is able to secure representation able to address the

8

overwhelming financial and professional representation of Defendant
. . . .”)).
The Court (per the undersigned) granted the First Motion to
Compel and denied Plaintiff’s extension request.
(the “Discovery Order”) at 15.)

(Docket Entry 41

The Discovery Order required

Plaintiff to respond to the Written Discovery by May 12, 2017, and
warned that “[f]ailure to comply with this [Discovery] Order may
result in dismissal of this action.”
Plaintiff

to

“pay

Defendant’s

(Id.)

reasonable

It also directed

expenses,

including

attorney’s fees, incurred in making the [First] Motion to Compel.”
(Id.)6
Next, Defendant moved to compel Plaintiff’s deposition and to
extend the deadlines for discovery and dispositive motions to
accommodate his deposition.

(See Docket Entries 42, 43.)

In

support of its request, Defendant explained that Plaintiff failed
to attend depositions noticed for April 20, 2017, and April 27,
2017.

(Docket Entry 42 (the “Second Motion to Compel”) at 2-3.)

Plaintiff did not respond to the Second Motion to Compel (see
Docket Entries dated Apr. 27, 2017, to June 8, 2017), which the
Court (per the undersigned) granted on June 8, 2017 (see generally
Docket Entry 46 (the “Deposition Order”)).

The Deposition Order

6 After the parties’ opportunity to address the amount of
expenses, the Court (per the undersigned) ordered Plaintiff to “pay
Defendant $1,833 as the reasonable expenses Defendant incurred in
making its [First] Motion to Compel.” (Docket Entry 49 at 3.)
9

required Plaintiff to appear for a deposition by June 30, 2017, and
warned that “[f]ailure to comply with this [Deposition] Order may
result in the dismissal of this action.”
Deposition

Order

also

directed

Plaintiff

(Id. at 4.)
to

pay

The

Defendant’s

expenses incurred “in making its [Second] Motion to Compel and due
to Plaintiff’s failure to appear at his depositions on April 20 and
27, 2017.”

(Id. at 5.)7

Finally, the Deposition Order extended

the deadline for dispositive motions to July 31, 2017.

(Id.)

On June 16, 2017, Defendant served on Plaintiff its “Second
Amended Notice of Deposition,” which scheduled a deposition for
8:30 a.m. on Friday, June 30, 2017.

(See Docket Entry 54-1 at 10-

11 (the “Deposition Notice”).) In response, Plaintiff submitted an
“Objection” dated June 23, 2017 (id. at 12-15; see also Docket
Entry 50 (same)), which, inter alia, presented Plaintiff’s “request
in response to the court ordered ‘Motion to Compel’ that the demand
for deposition be scheduled from 10:00 a.m. to 3:00 p.m.” to
accommodate his work schedule (id. at 13).

On June 27, 2017,

Defendant’s counsel sent Plaintiff (via email and regular mail) a
letter indicating that she received his Objection “[t]oday” and,
although she could not agree to limit the deposition to the
specified period, would, “as an accommodation to [his] request,

7 After the parties’ opportunity to address the amount of
expenses, the Court (per the undersigned) ordered Plaintiff to “pay
Defendant $2,273.10, as the reasonable expenses Defendant incurred
in connection with its [Second] Motion to Compel.” (Docket Entry
58 at 4.)
10

. . . agree to begin at 9:00 a.m. on June 30th.”

(Docket Entry 54-1

at 18; see also id. at 17; Docket Entry 51 at 3.)

In the

“Statement of Nonappearance of [Plaintiff] . . . on the 30th of
June 2017, commencing at 10:15 a.m.” (Docket Entry 54-1 (the
“Nonappearance Statement”) at 2), Defendant’s counsel states that
Plaintiff failed to respond to both this letter and an email she
sent

him

at

9:42

a.m.

on

June

30,

2017,

asking

whether

he

“plan[ned] on attending [the deposition]” (id. at 19). (See id. at
6.)
In July 2017, Plaintiff submitted an amended version of his
June Objection, which contains certain handwritten annotations.
(See, e.g., Docket Entry 51 (the “Second Objection”) at 1-2, 4
(containing

at

bottom

of

the

page

the

handwritten

notation,

“‘Objection’ to Deposition 6/30/17 and Lack of Notice” (emphasis in
original)).)8
Plaintiff’s

In particular, the Second Objection emphasizes
request

that

the

“deposition

be

scheduled

from

10:00 a.m. to 3:00 p.m.” to accommodate his work schedule (id. at
2 (emphasis in original)).

It concludes with the handwritten

statement, “I DID NOT AGREE to THIS SCHEDULE!!!!!”

(Id. at 3

(emphasis in original).)

8
The Second Objection bears the date of July 1, 2017
(see Docket Entry 51 at 1), and the postmark of July 3, 2017 (see
Docket Entry 51-1 at 1). The Clerk received the Second Objection
on July 5, 2017. (See id.)
11

On July 18, 2017, Defendant filed the instant Dismissal
Motion, asking that the Court dismiss this action pursuant to Rules
37 and 41 of the Federal Rules of Civil Procedure (the “Rules”).
(Docket Entry 53 at 1.)

In support of that request, Defendant

detailed Plaintiff’s various discovery failures, including his
failure to comply with the Discovery Order and the Deposition
Order.

(See Docket Entry 54 at 2-6.)

Defendant additionally

requested a stay of the deadline for filing dispositive motions
pending the Dismissal Motion’s resolution. (Docket Entry 53 at 1.)
On August 8, 2017, Plaintiff submitted his “Response [to]
Defendant[’s] Demand for ‘Summary Judgment’ and Dismissal Received
July 21, 2017.”

(Docket Entry 56 (the “Response”) at 1.)

In the

Response, Plaintiff reiterated his challenges to the denials of his
requests for appointment of counsel (see id. at 1-2) and asked the
Court to, inter alia, conduct “direct examination” of certain third
parties

(see

id.

at

6-7)

to

ascertain

their

involvement

in

“burdensome and overwhelming discovery demands” made to “this pro
se Plaintiff” (id. at 6) in a North Carolina Industrial Commission
matter (see id. at 3-6).

The Response also “proposed” that

“[e]very

that

economic

sanction

this

Court

imposes

on

this

Plaintiff . . . be paid at $25.00 per month while further referral
to the Fourth Circuit . . . for further ruling on this E.E.O.C.
action.”

(Id. at 6.)

representations

The Response did not, however, dispute the

regarding

Plaintiff’s

12

discovery

failures

that

Defendant made in the Dismissal Motion materials, including the
Nonappearance Statement.

(See generally id. at 1-7.)
DISCUSSION

I. Applicable Standards
“If the plaintiff fails to prosecute or to comply with the[
R]ules or a court order, a defendant may move to dismiss the action
or any claim against it.”

Fed. R. Civ. P. 41(b).

In determining

whether to dismiss under Rule 41(b), the Court evaluates “(i) the
degree of personal responsibility of the plaintiff; (ii) the amount
of prejudice caused the defendant; (iii) the existence of a history
of deliberately proceeding in a dilatory fashion, and (iv) the
existence of a sanction less drastic than dismissal.”
Carlson, 882 F.2d 93, 95 (4th Cir. 1989).

Ballard v.

In addition, the Court

may dismiss as a sanction for a plaintiff’s failure to (i) obey a
discovery order, see Fed. R. Civ. P. 37(b)(2)(A)(v); (ii) attend
his deposition, see Fed. R. Civ. P. 37(d)(1)(A)(i) & (3); or
(iii) respond to interrogatories and requests for production of
documents, see Fed. R. Civ. P. 37(d)(1)(A)(ii) & (3).

See also

Mutual Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d
88, 92 (4th Cir. 1989) (observing that Rule 37 “gives the district
court wide discretion to impose sanctions for a party’s failure to
comply with its discovery orders”).

In evaluating whether to

dismiss pursuant to Rule 37, the Court considers “([i]) whether the
noncomplying

party

acted

in

bad

13

faith;

([ii]) the

amount

of

prejudice
([iii])

his

the

need

noncompliance;
sanctions.”

noncompliance

and

for

caused

deterrence

([iv])

the

of

his
the

adversary[]
particular

effectiveness

of

less

.

.

.;

sort

of

drastic

Id.

As such, “[t]he legal standard for dismissals under Rule 37 is
virtually the same as that for dismissals . . . under Rule 41.”
Carter v. University of W. Va. Sys., Bd. of Trs., No. 93-1905, 23
F.3d 400 (table), 1994 WL 192031, at *2 (4th Cir. 1994).

In

exercising its discretion under Rules 37 and 41, the Court should
remain mindful that “dismissal is not a sanction to be invoked
lightly,” Ballard, 882 F.2d at 95, but also that dismissal “‘must
be available . . . in appropriate cases, not merely to penalize
those whose conduct may be deemed to warrant such a sanction, but
to deter those who might be tempted to such conduct in the absence
of such a deterrent,’” Davis v. Williams, 588 F.2d 69, 71 (4th Cir.
1978) (quoting National Hockey League v. Metropolitan Hockey Club,
Inc., 427 U.S. 639, 643 (1976)).

Furthermore, if a party fails to

obey an order after receiving a warning that such failure risks
dismissal, the Court will “ha[ve] little alternative to dismissal,”
as “[a]ny other course would . . . place[] the credibility of the
[C]ourt in doubt and invite[] abuse.”
II.

Ballard, 882 F.2d at 96.

Analysis

As an initial matter, Plaintiff proceeds pro se and thus “is
solely responsible for h[is] actions in this case.” Rowley v. City

14

of N. Myrtle Beach, Civ. Action No. 4:06-1873, 2008 WL 4831422, at
*4 (D.S.C. Oct. 31, 2008).
2017,

he

had

“received

Plaintiff admits that, by June 23,

[Defendant’s]

deposition and the [Deposition O]rder.”
Docket Entry 51 at 1.)

most

recent

notice

of

(Docket Entry 50 at 1;

Despite knowing that the Court ordered him

to “appear for a deposition at a date, time, and location . . .
noticed by Defendant on or before June 30, 2017” (Docket Entry 46
at 4), Plaintiff failed to appear at his scheduled deposition (see
generally

Docket

Entry

h[im]self

available

for

54-1).

“Plaintiff’s

h[is]

June

[30],

failure

20[17],

to

make

deposition,

knowing that this [C]ourt had ordered that h[is] deposition take
place on or before June 30, 20[17], is evidence of bad faith.”
Rowley,

2008

WL

4831422,

at

*4;

accord

Ellis

v.

Wal-Mart

Distribution, No. 3:10cv76, 2011 WL 3804233, at *2 (W.D.N.C. Aug.
2,

2011)

(concluding

that

the

plaintiff’s

failure

to

attend

depositions despite receiving deposition notices “and the [c]ourt
[o]rder mandating his attendance . . . . constitutes bad faith”),
report and recommendation adopted sub nom. Ellis v. Distribution
Tech., Inc., No. 3:10cv76, 2011 WL 3804294 (W.D.N.C. Aug. 29,
2011).9

9
Plaintiff’s contention that he did not agree to the
deposition schedule (see Docket Entry 51 at 3) does not alter this
conclusion. “[T]he Rules generally permit the party noticing the
deposition to pick its time and location,” and, “as a general
principle, . . . a plaintiff must bear any reasonable burdens of
inconvenience that the action represents.”
Crisp v. Allied
Interstate Collection Agency, No. 1:15cv303, 2016 WL 2760363, at *4
15

Similarly, Plaintiff’s failure to respond to the Written
Discovery by May 12, 2017, as directed in the Discovery Order,
constitutes bad faith.

See Mutual Fed., 872 F.2d at 92-93.

In

this regard, it bears noting that, although “[p]ro se litigants are
entitled to some deference from courts. . . . [,] they as well as
other litigants are subject to the time requirements and respect
for court orders without which effective judicial administration
would be impossible.”

Ballard, 882 F.2d at 96.

Furthermore, Plaintiff’s repeated failures to participate in
discovery, as directed by both this Court and the Rules, “clearly
prejudiced” Defendant.

Hanshaw v. Wells Fargo Bank, N.A., No.

2:11-cv-331, 2014 WL 4063828, at *4 (S.D. W. Va. Aug. 14, 2014).
To

begin

with,

Plaintiff

failed

to

appear

at

his

scheduled

deposition on three separate occasions. (See Docket Entry 46 at 12; Docket Entry 54-1.) As a neighboring court explained in similar
circumstances,
Plaintiff’s actions [in failing to appear at two
depositions] have substantially prejudiced Defendant by
requiring it to prepare for Plaintiff’s deposition twice,
engage a court reporter twice, and prepare two motions
for sanctions. Defendant asserts that it has incurred
thousands of dollars in attorneys’ fees and expenses in
connection with Plaintiff’s refusals to appear for his
deposition. See Parks v. Huff, 955 F.2d 42 (table), 1992

(M.D.N.C. May 12, 2016) (internal quotation marks omitted). Under
the circumstances, including Plaintiff’s “submi[ssion] that,”
employing his proposal, “this deposition will take more than one
day” (Docket Entry 51 at 2), Defendant’s refusal to agree to
Plaintiff’s preferred schedule did not excuse him from complying
with either the Deposition Notice or the Deposition Order.
16

WL 21363, at *2 (4th Cir. Feb. 10, 1992) (expense and
lost time constitute prejudice). Plaintiff’s deposition
is an essential part of the case, and a defendant cannot
be expected to defend a case where the person bringing
the action refuses to participate in the discovery
process.
Ellis, 2011 WL 3804233, at *2.10

Plaintiff’s failure to provide

responses to the Written Discovery only compounded this prejudice.
See, e.g., Mutual Fed., 872 F.2d at 93 (explaining that the
plaintiff “suffered great prejudice as a result of the defendants’
misconduct because [the plaintiff] could not prove its case . . .
without the business and bank records withheld by [a defendant]”).
Indeed, Plaintiff refused to either produce responses to the
Written Discovery or sit for a deposition before the discovery
period closed.

(See Docket Entry 54 at 4 (“Plaintiff did not

comply with Defendant’s written discovery requests and, as of [July
18, 2017], has continued to refuse to submit answers to written
discovery.”); Docket Entry 54-1 at 2, 6; see also Second Text Order
dated Oct. 31, 2016 (establishing discovery deadline of April 30,
2017); Text Order dated Apr. 28, 2017 (staying discovery deadline
pending resolution of the Second Motion to Compel); Docket Entry 41
at 15 (ordering Plaintiff to respond to the Written Discovery by
May 12, 2017); Docket Entry 46 at 4 (ordering Plaintiff to appear
for a deposition by June 30, 2017).)

That course of conduct

10
Here, even without considering costs associated with
Plaintiff’s third missed deposition, Defendant incurred more than
two thousand dollars in expenses from Plaintiff’s failure to attend
his scheduled depositions. (See Docket Entries 52-1, 58.)
17

interfered with Defendant’s ability to submit a dispositive motion
within the scheduled time-frame.

See M.D.N.C. LR 56.1(b) (“All

dispositive motions and supporting briefs must be filed and served
within 30 days following the close of the discovery period.”); (see
also Text Order dated Apr. 28, 2017 (staying “the 30-day period for
filing dispositive motions after the close of discovery” pending
resolution
particularly

of

the

given

Second
the

Motion

evolving

to

nature

Compel).)
of

Moreover,

Plaintiff’s

claims

(compare Docket Entry 7, with, e.g., Docket Entry 56), “[w]ith
Plaintiff[] having failed to participate in discovery, Defendant[]
cannot be expected to prepare for and participate in a trial set
for [January 2018],” Hanshaw, 2014 WL 4063828, at *4.
In

addition,

as

amply

demonstrated

by

the

Factual

and

Procedural History detailed above, “there is only a history of
dilatory action by Plaintiff[]” in this matter.
original).

Id. (emphasis in

Throughout this litigation, Plaintiff has refused to

move forward with discovery unless and until the Court either
(i) appoints him counsel (to which he lacks entitlement (see, e.g.,
Docket Entry 34 at 4-5)) or (ii) directly supervises such discovery
(despite the fact that he “has not shown good cause for such
extraordinary relief” (Text Order dated Mar. 14, 2017)).

(See,

e.g., Docket Entry 19 at 1 (asserting, in October 2016, that “I am
NOT qualified to [a]gree to any discovery schedule until the
[C]ourt rules on my motion for court appointed counsel” (emphasis

18

in original)); Docket Entry 26 at 1 (requesting, in January 2017,
an extension of time to respond to Written Discovery until “court
appointed counsel is provided”); Docket Entry 31 at 1 (objecting,
in February 2017, to “deposition demand until court appointed
counsel is provided”); Docket Entry 35 (requesting, in March 2017,
Court supervision of his deposition); Docket Entry 39 at 1-2
(requesting,

in

April

2017,

discovery

response

extension

and

objecting to discovery “until such time as this pro se Plaintiff is
able

to

secure

representation”);

Docket

Entry

56

at

5-6

(requesting, in August 2017, “Court direct examination” of various
individuals

and

issues

on

the

grounds

that

“[t]his

pro [se]

Plaintiff does not have the education[] or experience” necessary
for such matters (emphasis in original)).)
Put simply, “the existence of a history of deliberately
proceeding in a dilatory fashion is overwhelming in this case.”
Tastee

Treats,

Inc.

v.

United

States

Fid.

&

Guar.

Co.,

No.

5:07-cv-338, 2011 WL 2265541, at *3 (S.D. W. Va. June 7, 2011),
aff’d, 474 F. App’x 101 (4th Cir. 2012).
Plaintiff

has

“demonstrate[d]

a

Moreover, in so acting,

pattern

of

indifference

and

disrespect to the authority of the [C]ourt,” Mutual Fed., 872 F.2d
at 93, beginning with the Scheduling Order’s deadline for initial
disclosures (see Docket Entry 20-1 at 3 (“I am continuing to
consider compliance with the thirty day time line for a list of
witnesses and documents to support my claims.”)), and continuing

19

through the Deposition Order (see Docket Entry 46 at 4; Docket
Entry 54-1 at 2, 6).

“Such conduct is unacceptable,” Tastee

Treats, 2011 WL 2265541, at *3, and requires a strong response,
see Mutual Fed., 872 F.2d at 92 (“[W]here the party’s noncompliance
represents bad faith and callous disregard for the authority of the
district

court

and

the

Rules

.

.

.

.,

not

only

does

the

noncomplying party jeopardize his or her adversary’s case by such
indifference, but to ignore such bold challenges to the district
court’s power would encourage other litigants to flirt with similar
misconduct.”); see also Carter, 23 F.3d 400, 1994 WL 192031, at *23 (observing, in reference to a party’s “repeated noncompliance
with

discovery

requests,”

that

“district

courts

have

crowded

dockets and ‘[a]ppropriate sanctions must be available to prevent
[their] work from being impeded by the type of conduct disclosed by
this record’” (brackets in original) (quoting Davis, 588 F.2d at
71)).
Finally, the record establishes that dismissal constitutes the
only viable option to address Plaintiff’s noncompliance.

In April

2017, the Discovery Order imposed monetary sanctions on Plaintiff
for failing to respond to the Written Discovery, ordered him to
respond to such discovery by May 12, 2017, and warned him that
failure to comply with the Discovery Order risked dismissal of this
action.

(Docket Entry 41 at 15.)

the Discovery Order.

Plaintiff did not comply with

(See Docket Entry 54 at 1-4.)

20

In June 2017,

the Deposition Order imposed monetary sanctions on Plaintiff for
failing to attend his April 2017 depositions, ordered him to appear
for a deposition by June 30, 2017, and warned him that failure to
comply with the Deposition Order risked dismissal of this action.
(Docket Entry 46 at 4-5.)
with the Deposition Order.

Plaintiff similarly failed to comply
(See generally Docket Entry 54-1.)

Plaintiff’s conduct clearly demonstrates that monetary sanctions
and orders for compliance lack efficacy.11 Morever, in light of the
dismissal warnings in the Discovery Order and Deposition Order, the
“[C]ourt ha[s] little alternative to dismissal.

Any other course

would . . . place[] the credibility of the [C]ourt in doubt and
invite[] abuse.”

Ballard, 882 F.2d at 96.

In sum, every factor in the Rule 37 and Rule 41(b) analysis
counsels dismissal of Plaintiff’s suit.

Therefore, the Court

should grant Defendant’s request to dismiss this action with
prejudice.
III.

Remaining Request

Defendant additionally seeks “a stay of the July 31, 2017
dispositive motion deadline pending resolution of its [Dismissal]
Motion.”

(Docket Entry 53 at 1.)

The passage of this deadline

11 Plaintiff’s Response further confirms his willingness to
continue incurring monetary sanctions rather than comply with this
Court’s directives. (See Docket Entry 56 at 6 (“Every economic
sanction that this Court imposes on this Plaintiff is proposed to
be paid at $25.00 per month while further referral to the Fourth
Circuit . . . for further ruling on this . . . action.”).)
21

without

action

on

the

stay

request

effectively

mooted

it.

Furthermore, dismissal of this action as recommended herein would
moot such request.

Accordingly, the Court should deny as moot the

stay request.
CONCLUSION
Plaintiff’s

refusal

to

participate

in

discovery

and

his

noncompliance with the Discovery Order and Deposition Order warrant
dismissal

of

this

action.

That

conclusion

(and

other

considerations) moot Defendant’s request to stay the deadline for
filing dispositive motions.
IT IS THEREFORE RECOMMENDED that the Dismissal Motion (Docket
Entry 53) be granted in part and denied in part as follows:

this

action should be dismissed with prejudice and Defendant’s request
to stay the deadline for filing dispositive motions should be
denied as moot.
This 20th day of October, 2017.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

22