Johnson v. The Sunshine House, Inc.

Filing 46

ORDER affirming 39 Memorandum and Recommendations.; denying 31 Motion to Dismiss.; 41 and 45 are deemed to be Objections and are Overruled.; plaintiffs contentions of judicial bias are STRICKEN as unsupported.; The court fully affirms the magistrate judges non-dispositive Order 40 . Signed by District Judge Max O. Cogburn, Jr on 10/30/2012. (Pro se litigant served by US Mail.)(eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11cv511
RHAE JOHNSON,

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Plaintiff,
Vs.
THE SUNSHINE HOUSE, INC.,
Defendant.
_______________________________

ORDER

THIS MATTER is before the court on review of a Memorandum and
Recommendation issued in this matter. In the Memorandum and Recommendation (M&R),
the magistrate judge advised the parties of the right to file objections within 14 days, all in
accordance with 28, United States Code, Section 636(b)(1)(c). Despite the M&R being
favorable to plaintiff, she has filed objections and accuses the magistrate judge of bias.
The Federal Magistrates Act of 1979, as amended, provides that “a district court shall
make a de novo determination of those portions of the report or specific proposed findings
or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Camby v. Davis,
718 F.2d 198, 200 (4th Cir.1983). However, “when objections to strictly legal issues are
raised and no factual issues are challenged, de novo review of the record may be dispensed
with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Similarly, de novo review is not
required by the statute “when a party makes general or conclusory objections that do not
direct the court to a specific error in the magistrate judge’s proposed findings and
recommendations.” Id. Moreover, the statute does not on its face require any review at all
of issues that are not the subject of an objection. Thomas v. Arn, 474 U.S. 140, 149 (1985);
Camby v. Davis, 718 F.2d at 200. Nonetheless, a district judge is responsible for the final
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determination and outcome of the case, and accordingly the court has conducted a careful
review of the magistrate judge’s recommendation.
After entry of the Memorandum and Recommendation, plaintiff filed two pleadings
captioned “Motion to Object” (see docket entries #41 & #45). Reading such pleadings in a
light most favorable to plaintiff, the court deems these to be properly and timely filed
objections to the M&R and an Order (#40) entered the same day requiring parties to submit
proposed revisions to the Pretrial Order. In the first objection, plaintiff: (1) makes reference
to an interlocutory appeal (uncertified) which she filed with the Court of Appeals for the
Fourth Circuit before entry of the M&R; (2) objects to the M&R in its entirety; and (3)
demands that the deadlines in the original Pretrial Order be followed. In the second
objection, plaintiff appears to ask for a stay of the M&R pending disposition of her appeal
to the Fourth Circuit and reiterates her contention that the deadlines should be enforced
and/or followed.
Plaintiff is under a number of misconceptions, which the court will attempt to explain
so that plaintiff can understand the procedural stance of this case. First, the magistrate
judge’s M&R is favorable to her, requiring no objections. Indeed, the magistrtae judge
recommended denial of defendant’s Motion to Dismiss as too severe a sanction for her
failure to attend her deposition Second, the deadlines that are included in every Pretrial
Order may be amended at any time in the sound determination of the magistrate judge. The
Order objected to merely asks for plaintiff and defendant to confer and suggest new deadlines
to accommodate the taking of plaintiff’s deposition.
Finally, the court has considered plaintiff’s general objection to the Memorandum and
Recommendation. In a conclusory fashion, plaintiff contends that the Memorandum and
Recommendation should be reversed due to judicial bias. Such allegation of bias appears to
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be based on the above discussed misconceptions. As such allegation of bias is baseless, it
will be stricken and plaintiff is cautioned to be careful in making such baseless allegations,
which could also lead to sanctions. In any event, none of plaintiff’s objections point to any
error of law or erroneous conclusion as to any fact in the Memorandum and
Recommendation.
The court has conducted a careful review of the recommendation in its entirety and
can find no conclusion of fact that is unsupported by the pleadings and no conclusion of law
that is inconsistent with current law. In pertinent part, the magistrate judge concluded:
Although Plaintiff clearly opposes the pending motion, her rationale for
failing to attend her deposition scheduled for June 25, 2012, is difficult to
discern from her filings. It appears that her reasoning as to discovery
participation is, at best, misguided. Even though Plaintiff is appearing pro se,
she must abide by the Federal Rules of Civil Procedure, the Local Rules of the
Western District of North Carolina, and the orders of this Court.
Based on all of the circumstances of this case, the undersigned finds
that Defendant’s requested relief of dismissal is too harsh at this time.
However, Plaintiff is respectfully instructed that her continuing failure to
participate in discovery, including her own deposition, will likely lead to
sanctions, including Defendant’s reasonable expenses and attorney’s fees,
and/or dismissal of this lawsuit.
M&R (#39), at

3. Indeed, the magistrate judge did precisely what was required in

determining that dismissal is a harsh sanction and one of last resort. The Court of Appeals
for the Fourth Circuit has repeatedly noted that such involuntary dismissal with prejudice is
a “harsh” result and must be employed with caution.
We have noted that involuntary dismissal under Rule 41(b) "is such a harsh
sanction ... [that] it should be resorted to only in extreme cases." McCargo v.
Hedrick, 545 F.2d 393, 396 (4th Cir.1976) (quotation marks omitted). We thus
require a district court to consider four factors when deciding whether to
involuntarily dismiss an action for attorney misconduct. Id. First, the court
must consider the "degree of personal responsibility on the part of the
plaintiff." Id. Second, it must determine the "amount of prejudice to the
defendant." Id. Third, it must look to the record to see if it indicates "a drawn
out history of deliberately proceeding in a dilatory fashion." Id. Finally, the
court must consider whether "sanctions less drastic than dismissal" will be
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effective. Id.
Richardson v. Boddie-Noell Enterprises, Inc., 2003 WL 22429534, at 4 (4 th Cir. 2003).1
Further, the appellate court has instructed that the “test for dismissal pursuant to Rule 41(b)
is similar to that for Rule 37,” and that “before a dismissal a court must give a plaintiff a
"clear and explicit" warning of the consequences of failing to satisfy the court's conditions
and orders,” and that “dismissal as a sanction is an extreme remedy to be used only when a
party has displayed callous disregard to its obligations or exhibited very bad faith.” Berry
v. South Carolina Dept. of Social Services, 1997 WL 499950, at 6 (4 th Cir. 1997).
Plaintiff is now clearly and explicitly warned that the consequences of further failures
to obey court orders, failure to attend her deposition, or failure to provide properly requested
discovery, could result in the imposition of sanctions, including dismissal of her case with
prejudice.
After such careful review, the court determines that the Memorandum and
Recommendation of the magistrate judge is fully consistent with and supported by current
law. Further, the factual background and recitation of issues is supported by the applicable
pleadings. Based on such determinations, the court will fully affirm the Memorandum and
Recommendation and grant relief in accordance therewith.

ORDER
IT IS, THEREFORE, ORDERED that the Memorandum and Recommendation
(#39) is AFFIRMED, plaintiff’s "Motion[s] to Object" (#41 & #45) are DEEMED to be
objections and are OVERRULED, plaintiff’s contentions of judicial bias are STRICKEN

1

Due to the limits of CM/ECF, copies of unpublished opinions are
incorporated herein by reference to the Westlaw citation.
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as unsupported, and defendant’s Motion to Dismiss as Sanction for Failure to Appear for
Deposition (#31) is DENIED. Further, the court fully affirms the magistrate judge’s nondispositive Order (#40) as plaintiff has not shown that it is clearly erroneous or contrary to
law.

Signed: October 30, 2012

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