WANG V. FOU

Filing 42

ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 3/12/2019, adopting the Magistrate Judge's Recommendation, (Doc. 38 ), is ADOPTED. FURTHER that Defendant's Motion for Sanctions, (Doc. 32 ), is GRANTED, that the Clerk enter default against Plaintiff as to Defendant's counterclaims, that Plaintiff's claims are dismissed with prejudice, and that Defendant is awarded costs and fees incurred in bringing the Motion to Compel and the Motion for Sanctions. (Butler, Carol)

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

XINDA WANG,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
JANET YIJUAN FOU,
Defendant.

1:17CV470

ORDER
This matter is before this court for review of the
Recommendation filed on January 17, 2019, by the Magistrate
Judge in accordance with 28 U.S.C. § 636(b). (Doc. 38.) In the
Recommendation, the Magistrate Judge recommends that Defendant’s
Motion for Sanctions, (Doc. 32), be granted, that the Clerk
enter default against Plaintiff as to Defendant’s counterclaims,
that Plaintiff’s claims be dismissed with prejudice, and that
Defendant be awarded costs and fees incurred in bringing the
Motion to Compel and the Motion for Sanctions. The
Recommendation was served on the parties to this action on
January 17, 2019 (Doc. 39). Plaintiff timely filed objections
(Doc. 40) to the Recommendation.
This court is required to “make a de novo determination of
those portions of the [Magistrate Judge=s] report or specified

proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). This court “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the [M]agistrate [J]udge. . . . [O]r recommit the matter
to the [M]agistrate [J]udge with instructions.” Id.
Plaintiff raises three objections which relate directly to
the Magistrate Judge's Recommendation. Plaintiff states that
“her noncompliance has not been malicious and has caused no
long-term prejudice to the defendant . . . [and] the proposed
punishment is simply too harsh to fit the plaintiff's conduct.”
(Doc. 40 at 1.) While Plaintiff argues the merits of her claim
in her objections, Plaintiff offers no facts which would rebut
the well-reasoned opinion of the Magistrate Judge. Contrary to
Plaintiff's argument that Plaintiff's noncompliance has not been
malicious, this court notes that Plaintiff's counsel alleged in
November 2017 that he “has attempted repeatedly to get the
plaintiff's responses to the defendant's request for production,
and he will continue to do so.” (Doc. 20 at 1.) By that
allegation, it is clear that Plaintiff, not counsel, is
responsible for delays in discovery. In that same pleading,
Plaintiff claimed, without support, that it would be “unduly
burdensome to require the plaintiff to come to North Carolina
for a deposition.” (Id.) If Plaintiff had some genuine basis
- 2 -

upon which to claim undue burden in appearing for her
deposition, Plaintiff should have brought that to her counsel's
attention before the agreed-upon Joint Rule 26(f) report was
submitted or by way of a protective order, not as an excuse for
failing to appear after efforts had been made to conduct
discovery in accordance with the original report, (Doc. 11), and
the order adopting that report (Doc. 13). Plaintiff's failure to
appear for deposition and failure to provide responses to
discovery violates three orders of the court: the original
consented to discovery order, (Doc. 13), entered September 1,
2017; the order issued by the Magistrate Judge on November 29,
2017, (Doc. 24); and an order issued by the Magistrate Judge on
April 13, 2018, (see Doc. 31).
This court has appropriately reviewed1 the portions of the
Recommendation to which objections were made and has made a
de novo determination which is in accord with the Magistrate
Judge=s Recommendation. This court therefore adopts the
Recommendation.
IT IS THEREFORE ORDERED that the Magistrate Judge=s
Recommendation, (Doc. 38), is ADOPTED. IT IS FURTHER ORDERED that
Defendant’s Motion for Sanctions, (Doc. 32), is GRANTED, that the

This court has reviewed the “Supplementary Memo” (Doc. 41)
and finds that is it not timely nor does it change the analysis.
1

- 3 -

Clerk enter default against Plaintiff as to Defendant’s
counterclaims, that Plaintiff’s claims are dismissed with
prejudice, and that Defendant is awarded costs and fees incurred
in bringing the Motion to Compel and the Motion for Sanctions.
This the 12th day of March, 2019.

____________________________________
United States District Judge

- 4 -