Long v. CPI Security Systems, Inc.

Filing 73

ORDER granting 53 MOTION to Strike Declarations; MEMORANDUM AND RECOMMENDATIONS recommending that Mika Elliott's clams be dismissed without prejudice and that 63 MOTION to Dismiss for Failure to Participate in Discovery filed by CPI Security Systems, Inc. be denied. ( Objections to M&R due by 4/8/2013). Signed by Magistrate Judge David S. Cayer on 3/20/2013. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:12-CV-00396-RJC-DSC
DARRYL LONG, individually and on
behalf of all other similarly situated
individuals,
Plaintiffs,

v.
CPI SECURITY SYSTEMS, INC.,
Defendant.

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MEMORANDUM AND
RECOMMENDATION AND ORDER

THIS MATTER is before the Court on Defendant’s “Motion to Dismiss for Failure to
Participate in Discovery,” doc. 63, filed January 22, 2013, and the parties’ associated briefs and
exhibits. See Docs. 64, 69, 70 and 71.
This Motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§636(b)(1), and is now ripe for the Court’s consideration. On February 26, 2013, “Defendant’s
Motion to Strike Declarations,” doc. 53, was referred to the undersigned and is also ripe for the
Court’s consideration.
I.

MOTION TO STRIKE

The Court has carefully examined the record, the parties’ arguments, and the applicable
authorities. For the reasons stated in Defendant’s “Memorandum in Support of Defendant’s
Motion to Strike Declarations,” doc. 54, the Court will GRANT Defendant’s Motion and strike
the declarations of Blake Nash and James Berish from Plaintiff’s Motion for Conditional Class
Certification.

II.

MOTION TO DISMISS

District courts have the authority to dismiss cases under Federal Rule of Civil Procedure
37(b)(2)(A) when a party fails to comply with a discovery order, as well as under Rules 37(d)
and 41(b) as part of the courts’ “comprehensive arsenal of Federal Rules and statutes to protect
themselves from abuse.” Chambers v. NASCO, Inc., 501 U.S. 32, 62, (1991). Rule 37(b)
provides that the court may “dismiss[ ] the action or proceeding in whole or in part” if a party
“fails to obey an order to provide or permit discovery.” Fed.R.Civ.P. 37(b)(2)(A)(v). Likewise,
Rule 37(d) provides that the court may order sanctions, including dismissal, if “a party... fails,
after being served with proper notice, to appear for that person’s deposition.” Fed.R.Civ.P.
37(d)(1)(A)(i), (d)(3). Further, Rule 41(b) provides that the court may dismiss an action “[i]f the
plaintiff fails to prosecute or to comply with these rules or a court order.” Fed.R.Civ.P. 41(b)
Dismissal with prejudice is ordinarily reserved for the most egregious cases. Sadler v.
Dimensions Health Corp., 178 F.R.D. 56, 59 (D.Md.1998) (citing Dove v.Codesco, 569 F.2d
807, 810 (4th Cir.1978). Indeed, “only the most flagrant case, where the party's noncompliance
represents bad faith and callous disregard for the authority of the district court and the Rules,
[should] result in the extreme sanction of dismissal or judgment by default.” Mut. Fed. Sav. &
Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir.1989). To that end, before
ordering dismissal under Rule 37(b) or (d), the court applies a four-factor test: “(1) whether the
non-complying 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 non-compliance; and (4)
whether less drastic sanctions would have been effective.” Belk v. Charlotte Mecklenburg Bd.
of Educ., 269 F.3d 305, 348 (4th Cir. 2001).

The Fourth Circuit has also held that district courts must provide an explicit and clear
warning to a party that failure to comply may result in dismissal of that party's case with
prejudice. Hathcock v. Navistar Int'l Transportation Corp., 53 F.3d 36, 40–41 (4th Cir.1995)
(“this court has emphasized the significance of warning a defendant about the possibility of
default [under Rule 37] before entering such a harsh sanction”); Choice Hotels Int'l, Inc. v.
Goodwin & Boone, 11 F.3d 469, 471 (4th Cir.1993) (party in case involving possible dismissal
under Rule 41 “is entitled to be made aware of this drastic consequence of failing to meet the
court's conditions at the time the conditions are imposed, when he still has the opportunity to
satisfy the conditions and avoid it”).
The undersigned finds that Plaintiffs have not previously been warned about the
consequences of dismissal and that dismissal would be too severe a sanction at this time.
Consequently, the undersigned respectfully recommends that the Motion be DENIED. However,
the Court warns Plaintiffs and their counsel that any failure to comply fully with Defendant’s
discovery requests, any of the Court’s Orders, the Local Rules, or the Rules of Civil Procedure
going forward with this case may result in the imposition of sanctions, which may include
dismissal of the Complaint with prejudice.
With regard to Plaintiff Mika Elliott, an Opt-in Plaintiff who has indicated his desire to
withdraw from the lawsuit, the undersigned respectfully recommends that his claims be
dismissed without prejudice.
III.

ORDER

IT IS ORDERED that “Defendant’s Motion to Strike Declarations,” doc. 53, is
GRANTED.

IV.

RECOMMENDATION

FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
Plaintiff Mika Elliott’s claims be dismissed without prejudice and that “Defendants’ Motion to
Dismiss for Failure to Participate in Discovery,” doc. 63, be DENIED.
V.

NOTICE OF APPEAL RIGHTS

The parties are hereby advised that, pursuant to 28 U.S.C. §636(b)(1)(c), written
objections to the recommendation contained in this Memorandum must be filed within fourteen
(14) days after service of same. Failure to file objections to this Memorandum with the District
Court constitutes a waiver of the right to de novo review by the District Judge. Diamond v.
Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005); Wells v. Shriners Hosp., 109 F.3d 198, 201
(4th Cir. 1997); Snyder v. Ridenour, 889 F.2d 1363, 1365 (4th Cir. 1989). Moreover, failure to
file timely objections will also preclude the parties from raising such objections on appeal.
Thomas v. Arn, 474 U.S. 140, 147 (1985); Diamond, 416 F.3d at 316; Page v. Lee, 337 F.3d
411, 416 n.3 (4th Cir. 2003); Wells, 109 F.3d at 201; Wright v. Collins, 766 F.2d 841, 845-46
(4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk is directed to send copies of this Memorandum and Recommendation and Order to the
parties’ counsel; and to the Honorable Robert J. Conrad, Jr.

SO ORDERED AND RECOMMENDED.
Signed: March 20, 2013