Cunningham v. Wells Fargo N.A et al
ORDER granting in part and denying in part 43 Motion for Sanctions; denying 45 Motion to Enforce Discovery Order re 39 Order on Motion to Compel; granting 50 Motion for Extension of Time of Scheduling Order Deadl ines. ( Motions due by 3/4/2022., Jury Trial set for 5/2/2022 09:00 AM in Courtroom #5B, 401 W Trade St, Charlotte, NC 28202 before District Judge Frank D. Whitney.). Signed by District Judge Frank D. Whitney on 1/11/2022. (Pro se litigant served by US Mail.)(ef)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
DOCKET NO. 3:19-cv-00528-FDW
WELLS FARGO & COMPANY
THIS MATTER is before the Court on several motions filed by the parties: Defendant’s
“Motion for Contempt, Sanctions, and Dismissal of Plaintiff’s Second Amended Complaint,”
(Doc. No. 43), Plaintiff’s “Motion to Enforce Discovery Order,” (Doc. No. 45), and Defendant’s
“Motion for Extension of Scheduling Order Deadlines,” (Doc. No. 50). The parties have fully
briefed these motions and they are ripe for ruling. For the reasons that follow, Defendant’s Motion
for Contempt, Sanctions, and Dismissal . . .” is GRANTED IN PART AND DENIED IN PART;
Plaintiff’s “Motion to Enforce Discovery Order” is DENIED, and Defendant’s “Motion for
Extension of Scheduling Order Deadlines” is GRANTED with modification.
In sum, Plaintiff, who appears pro se, and Defendant have had multiple discovery disputes
throughout the course of this litigation. The Court conducted an informal telephone conference
on October 19, 2021, with Plaintiff and counsel for Defendant because Plaintiff was refusing to
answer questions at her deposition. The Court heard the parties’ arguments, informed the parties
of their respective discovery obligations, and made several rulings to resolve the disputes and move
the case forward. That same day, the Court memorialized its ruling on the parties’ disputes and
Case 3:19-cv-00528-FDW Document 51 Filed 01/11/22 Page 1 of 11
again reiterated to Plaintiff the burden she carried to respond to discovery requests and appear at
her deposition pursuant to the Federal Rules of Civil Procedure or she could otherwise face
sanctions, a finding of contempt, and/or dismissal of her case. (Doc. No. 39). The Court also
allowed Plaintiff limited additional discovery in the form of document production from Defendant
if she could narrowly tailor her requests in accordance with the Court’s directive. Plaintiff
subsequently filed a Motion For Clarification of the Court’s prior order, which the Court granted
in part to explain Plaintiff’s discovery obligations, including those specifically related to
procedures for her deposition. (Doc. No. 41). Again, the Court cautioned Plaintiff that failure to
comply with discovery as ordered by the Court could result in a finding of contempt and/or
sanctions, including the possibility of dismissal of her claims. Both parties have filed motions
asking this Court to enforce its prior discovery orders, and the Court addresses them in turn, as
well as the related motion for extension of deadlines.
Defendant’s Motion for Contempt, Sanctions and Dismissal
Citing to Rule 37 of the Federal Rules of Civil Procedure and this Court’s previous orders,
Defendant seeks sanctions, a finding of contempt, and dismissal of this case are appropriate based
on Plaintiff’s refusal to participate in her deposition and her refusal to execute a signed medical
records release authorization required by Atrium Health. Plaintiff appeared for her deposition on
November 19, 2021, and sought to record the deposition via the video feature on her personal iPad.
Defendant objected noting the applicable Federal Rules of Civil Procedure that precluded Plaintiff
from doing so. Plaintiff then refused to answer questions until she had a videographer of her choice
appear at the deposition. Plaintiff also refused the opportunity to have the court reporter who was
present at the deposition record the deposition using the video features on Zoom. The deposition
Case 3:19-cv-00528-FDW Document 51 Filed 01/11/22 Page 2 of 11
was terminated, although the parties dispute what happened next. Plaintiff contends the deposition
was stopped so she could have “a chance to quickly find a videographer,” which she contends she
found on the same day after she left her deposition and that she attempted to inform counsel for
Defendant of this in order to continue her deposition. Defendant, on the other hand, contends there
is no dispute that Plaintiff walked out of her deposition on November 19, refusing to answer
questions without a videographer, despite being offered to have the court reporter already present
video record the deposition via Zoom. Plaintiff indicated she was going to file a motion with this
Court about her deposition, but never did.
As ordered in the telephone conference with the Court, Plaintiff executed a signed medical
records release authorization. Multiple health care providers accepted the release and responded
to Defendant’s subpoena for Plaintiff’s medical records. Atrium Health, however, notified
Defendant that Plaintiff would need to execute its specific medical records release form before it
would produce documents responsive to Defendant’s subpoena. Defendant provided Atrium
Health’s release authorization form to Plaintiff, who has refused to execute it.
Rule 37(b) of the Federal Rules of Civil Procedure permits the Court to enter sanctions
against a party for failure to cooperate in discovery. In pertinent part, that rule provides:
(A) For Not Obeying a Discovery Order. If a party or a party's officer,
director, or managing agent--or a witness designated under Rule 30(b)(6) or
31(a)(4)--fails to obey an order to provide or permit discovery, including an order
under Rule 26(f), 35, or 37(a), the court where the action is pending may issue
further just orders. They may include the following:
(i) directing that the matters embraced in the order or other designated facts
be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
Case 3:19-cv-00528-FDW Document 51 Filed 01/11/22 Page 3 of 11
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an
order to submit to a physical or mental examination.
(C) Payment of Expenses. Instead of or in addition to the orders above, the
court must order the disobedient party, the attorney advising that party, or both to
pay the reasonable expenses, including attorney's fees, caused by the failure, unless
the failure was substantially justified or other circumstances make an award of
Fed. R. Civ. P. 37(b)(2).
In determining the appropriate sanctions to impose under Rule 37, this Court must consider
four factors: “‘(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 noncompliance, and (4) whether less drastic sanctions would have been effective.’” S. States Rack
And Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003) (quoting Anderson
v. Found. for Advancement, Educ. & Employment of Am. Indians, 155 F.3d 500, 504 (4th Cir.
1998); accord Belk v. Charlotte–Mecklenburg Bd. of Educ., 269 F.3d 305, 348 (4th Cir.2001) (en
banc), cert. denied, 535 U.S. 986, 122 S. Ct. 1537, 152 L.Ed.2d 465 (2002)). The Fourth Circuit
has explained, “These factors reflect the ‘great caution’ courts must exercise before imposing the
severe sanction of dismissal.” Beach Mart, Inc. v. L&L Wings, Inc., 784 F. App'x 118, 124 (4th
Cir. 2019) (citing United States v. Shaffer Equip. Co., 11 F.3d 450, 462 (4th Cir. 1993)). In
addition, “[t]he Fourth Circuit has emphasized the significance of establishing a history of dilatory
action and warning to the offending party of what may follow prior to imposing monetary sanctions
or dismissing the action for failure to comply with discovery obligations.” United States v.
Approximately $88,125.00 in United States Currency, No. 3:10CV486, 2013 WL 98280, at *1
Case 3:19-cv-00528-FDW Document 51 Filed 01/11/22 Page 4 of 11
(W.D.N.C. Jan. 8, 2013) (citing Hathcock v. Navistar Intern. Trans. Corp., 53 F.3d 36, 40 (1995);
Choice Hotels Int'l v. Goodwin & Boone, 11 F.3d 469, 473 (4th Cir.1993); Lolatchy v. Arthur
Murray, Inc., 816 F.2d 951, 953 (4th Cir.1987)).
Turning to the four factors outlined by the Fourth Circuit, the Court first concludes
Plaintiff’s steadfast failure to comply with her obligations concerning discovery supports a finding
of bad faith, not inadvertence. The Court does not single out one specific instance as indicative of
bad faith. Instead, the record as a whole that presents Plaintiff’s history of delay and noncompliance. Her repeated failure to comply with the Court's prior orders, despite being warned of
the expectation that the parties cooperate with each other to effectuate the order and of the prospect
of sanctions for failure to comply, demonstrates bad faith. Her ongoing conduct has needlessly
delayed and disrupted the course of litigation in a case she instituted. She continues to violate the
Court’s orders regarding discovery, ignore the Rules of Civil Procedure, and unreasonably object
to Defendant’s attempts to maintain an orderly discovery process.
The fact that Plaintiff appears pro se does not mitigate the Court’s finding of bad faith here,
particularly where the Court has explained her obligations in a telephone conference (where she
was permitted to make argument and ask questions), an order, and an additional order clarifying
the prior order. Self-represented litigants “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 v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989). Indeed, a litigant's pro se
status does not excuse him or her from complying with the Federal Rules of Civil Procedure. See
Bailey-El v. Hous. Auth. of Baltimore City, 795 F. App’x 183 (4th Cir. 2020) (affirming dismissal
of the pro se plaintiff’s complaint as a sanction for failure to cooperate with discovery); see also
Case 3:19-cv-00528-FDW Document 51 Filed 01/11/22 Page 5 of 11
Dancy v. Univ. of N.C. at Charlotte, No. 3:08–CV–166–RJC–DCK, 2009 WL 2424039, at *2
(W.D.N.C. Aug. 3, 2009). In no uncertain terms, Plaintiff has been instructed multiple times to
appear for her deposition and answer all questions by counsel, noting her objections on the record
prior to responding. Notwithstanding this clear directive, Plaintiff again refused to answer
questions at her deposition. In a similar vein, despite the Court advising Plaintiff that her medical
records are discoverable and the Court’s orders compelling her to execute the appropriate medical
records release, Plaintiff refuses to complete the necessary release documents for Defendant to
obtain her medical records from Atrium Health. Her asserted objections to the Atrium Health
release form, including her challenges to the process through which defense counsel engaged in
order to subpoena the documents, are speculative at best and without merit. Again, this continued
refusal to comply with clear directives from the Court demonstrates bad faith.
As to the second factor, Plaintiff’s conduct has materially prejudiced Defendant, who has
noticed, prepared for, and appeared to take Plaintiff’s deposition—twice.
noncompliance has caused her adversary losses in time and money in pursuing her deposition and
the medical release authorization for Atrium Health, in addition to forcing Defendant to seek
extensions of deadlines from the Court to allow additional time for Plaintiff to comply with
discovery. Without Plaintiff’s participation in her deposition or her consent to release of her
medical records, Defendant has been unable to adequately prepare their case, a situation that puts
them at a distinct and prejudicial disadvantage. Third, this record demonstrates the need for
deterrence of Plaintiff’s repeated failure to engage in discovery in accordance with applicable law
despite the Court repeatedly informing her of this obligation. Fourth, the Court has considered
what sanctions, including less drastic sanctions than dismissal, will be effective. Finally, the Court
Case 3:19-cv-00528-FDW Document 51 Filed 01/11/22 Page 6 of 11
finds that neither Plaintiff’s refusal to participate in her deposition in November nor her refusal to
execute the additional medical records release form are substantially justified. She had advance
notice that her deposition would not be videorecorded, and exhibits to the instant motions indicate
defense counsel patiently gave Plaintiff multiple opportunities and consistent explanations as to
the need for the supplemental medical release authorization form required by Atrium Health.
The Court will not dismiss this action at this time, as decisions on the merits are more
favored in the Fourth Circuit and lesser sanctions are available. Zornes v. Specialty Indus., Inc.,
166 F.3d 1212 (4th Cir. 1998) (“Rule 37 is flexible. It gives the district court a wide range of
possible sanctions from which the court is given the discretion to choose the most appropriate
considering the unique circumstances of each case.” (citation omitted). Instead, the Court will
sanction Plaintiff by ordering her to pay the reasonable expenses, including attorney’s fees,
incurred by Defendant for the deposition on November 19, 2021, as well as the attorney’s fees
incurred in the multiple requests to Plaintiff to execute the medical records release authorization
for Atrium Health. In addition, the Court will order Plaintiff to pay the reasonable attorneys’ fees
associated with bringing the instant motion (Doc. No. 43), including its reply brief (Doc. No. 48).
Excluded from this sanction are the attorneys’ fees associated with responding to Plaintiff’s
discovery motion (Doc. No. 45).
No later than January 25, 2022, Defendant shall file on the docket an affidavit, supported
by billing records and redacting any privileged information, as to the reasonable costs and
attorneys’ fees allowed pursuant to this Court’s ruling. Upon receipt of the affidavit and supporting
documentation, the Court will enter a subsequent order specifying the amount owed by Plaintiff to
Defendant as a sanction for her failure to comply with discovery and this Court’s orders.
Case 3:19-cv-00528-FDW Document 51 Filed 01/11/22 Page 7 of 11
In addition, Plaintiff shall execute the medical records release authorization required by
Atrium Health no later than January 14, 2022. Given the unique issues in this case, Defendant
shall file with the Court the notice of Plaintiff’s deposition no later than January 25, 2022. The
deadline for conducting Plaintiff’s deposition is February 11, 2022. As previously instructed,
Plaintiff must appear at her deposition as noticed, she must answer all questions of counsel, and
she may note any objections to any question and then answer the question.
Plaintiff is cautioned that failure to comply with this Order could result in the
dismissal of her case with prejudice. And, it bears noting that given the significant involvement
by the Court thus far in resolving discovery disputes on multiple occasions, if Plaintiff fails to
comply with this Order, the Court will not be inclined in the future to grant the same leniency
shown here in allowing Plaintiff to continue to her case and pursue her causes of action against
Plaintiff’s Motion to Enforce Discovery Order
Next, the Court summarily denies Plaintiff’s Motion to Enforce Discovery Order. The
majority of Plaintiff’s motion misconstrues the Court’s prior Order allowing Plaintiff limited
discovery of email communications related to Plaintiff’s claims in this lawsuit. In the telephone
conference addressing the parties’ initial discovery disputes, the parties were able to amicably
reach an agreement on Plaintiff’s then-pending Motion to Compel, and the Court’s subsequent
order confirmed that Plaintiff could supplement her initially overly-broad discovery requests by
identifying “search terms (up to 10 words), people, and time frame for Defendant to be able to
identify and produce any communications from March 2018 to August 2020 that are relevant to
Plaintiff’s claims and have not already been produced by Defendant.” (Doc. No. 39, p. 2). In
Case 3:19-cv-00528-FDW Document 51 Filed 01/11/22 Page 8 of 11
response, Plaintiff sent requests to Defendant that identified individuals and time periods, but
failed to indicate ten search terms to limit the document production of communications involving
these individuals and time periods. Indeed, Plaintiff concedes, “Plaintiff identified people and
time frames as search terms . . . .” (Doc. No. 49, p. 1 (emphasis added)). Plaintiff also added
additional discovery requests that had not been previously discussed with the Court. (Doc. No.
45-1, pp. 29-34).
“[D]iscovery rules are to be accorded a broad and liberal treatment to effect their purpose
of adequately informing the litigants in civil trials.” Herbert v. Lando, 441 U.S. 153, 177 (1979);
see Hickman v. Taylor, 329 U.S. 495, 507 (1947). However, a litigant may not use discovery
requests to annoy, embarrass, oppress, or cause an undue burden or expense to his opposing party.
See Fed.R.Civ.P. 26(c)(1). Additionally, the court has “substantial discretion” to grant or deny
motions to compel discovery. Lone Star Steakhouse & Saloon. Inc. v. Alpha of Va., Inc., 43 F.3d
922, 929 (4th Cir. 1995). And it is well-settled law that “[d]iscovery should not become a ‘fishing
expedition.’” Cohn v. Bond, 953 F.2d 154, 159 (4th Cir. 1991) (citation omitted).
After reviewing Plaintiff’s supplemental request, the Court concludes her requests continue
to be vague, ambiguous, overly broad, and unduly burdensome. (See Doc. No. 45-1, pp. 29-34).
Plaintiff’s failure to tailor her requests in accordance with the parties’ agreement and the Court’s
order is fatal, as her supplemental requests fail to satisfy the basic inquiry into relevancy. See Fed.
R. Civ. P. 26(b). Of course, not all communications involving the persons and time periods
identified by Plaintiff are discoverable. Without the appropriate identification of search terms to
narrow the scope, the Court is left to guess as to the relevancy of the requests. Futhermore,
Defendant already produced a significant amount of documents in response to Plaintiff’s request.
Case 3:19-cv-00528-FDW Document 51 Filed 01/11/22 Page 9 of 11
In short, Plaintiff failed to avail herself of the opportunity allowed by the Court to obtain
limited discovery on email communications, and Defendant’s objections to her requests are valid
in accordance with applicable law. Additionally, it appears as though Defendant’s previous
document production fulfills many of the new requests Plaintiff asserted. As to Plaintiff’s
unsubstantiated claims of misconduct by Defendant and its counsel during discovery in this
litigation, those arguments are without merit and are also summarily denied.
Motion for Extension of Time
Finally, in light of the discovery disputes and inability to conduct Plaintiff’s deposition
prior to the dispositive motions deadline, Defendant requests an extension of the dispositive
motions deadline, which—given the current settings—will also necessitate a continuance of trial.
The Court grants the motion and hereby extends the following deadlines:
Deadline for Plaintiff’s Deposition
February 11, 2022
Dispositive Motions Deadline
March 4, 2022
Jointly-Prepared Pretrial Submissions
April 22, 2022
Docket Call and Pretrial Conference
May 2, 2022
May 2, 2022
The Court does not intend to conduct a hearing on any dispositive motions that are filed. If, after
reviewing the dispositive motions, the Court finds that a hearing would aid in the decisional
process, it will notice a hearing.
IT IS THEREFORE ORDERED that Defendant’s Motion for Sanctions, Contempt, and
Dismiss (Doc. No. 43) is GRANTED IN PART and DENIED IN PART. Plaintiff shall pay
reasonable expenses and attorneys’ fees as ordered herein. Defendant shall provide the requested
documentation to support an appropriate amount no later than January 25, 2022.
Case 3:19-cv-00528-FDW Document 51 Filed 01/11/22 Page 10 of 11
IT IS FURTHER ORDERED that Plaintiff shall execute the medical records release
authorization required by Atrium Health no later than January 14, 2022. Defendant shall file notice
of Plaintiff’s deposition no later than January 25, 2022, and the deadline for conducting this
deposition is February 11, 2022.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Enforce Discovery (Doc. No. 45)
IT IS FURTHER ORDERED that Defendant’s Motion for Extension of Time (Doc. No.
50) is GRANTED, and the new deadlines shall be as follows:
Deadline for Plaintiff’s Deposition
Dispositive Motions Deadline
Jointly-Prepared Pretrial Submissions
Docket Call and Pretrial Conference
February 11, 2022
March 4, 2022
April 22, 2022
May 2, 2022
May 2, 2022
IT IS FURTHER ORDERED that Plaintiff is once again cautioned that any further
refusal to participate in discovery or her deposition could result in the dismissal of her case
IT IS SO ORDERED.
Signed: January 11, 2022
Case 3:19-cv-00528-FDW Document 51 Filed 01/11/22 Page 11 of 11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?