Sanders v. Lowe's Companies, Inc. et al
Filing
106
ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION accepting 77 Report and Recommendation, denying 54 Motion to Dismiss without prejudice. Signed by Honorable J Michelle Childs on 9/27/2016. (asni, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Eric Alan Sanders,
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Plaintiff,
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v.
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Lowe’s Home Centers, LLC; EEOC of
)
Charlotte, NC; John Hayward; Mike
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Calzareeta; Doug Ford; Rayvon Irby,
)
)
Defendants.
)
___________________________________ )
Civil Action No. 0:15-cv-02313-JMC
ORDER AND OPINION
Plaintiff Eric Alan Sanders (“Sanders” or “Plaintiff”) filed this action pro se against
Defendants Lowe’s Home Centers, LLC (“Lowe’s”); the EEOC of Charlotte, NC; John Hayward
(“Hayward”); Mike Calzareeta (“Calzareeta”); Doug Ford (“Ford”); and Rayvon Irby (“Irby”)
alleging that he was subjected to discrimination, retaliation, and a hostile work environment in
violation of the Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e–
2000e17, and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101–12213.
(ECF No. 16.) Plaintiff also alleges claims for violation of his civil rights under 42 U.S.C. §
1983 and state law claims for violation of South Carolina statutory law. (ECF No. 16.)
This matter is before the court on Lowe’s Motion to Dismiss pursuant to Rules
37(b)(2)(A)(v) and 41(b) of the Federal Rules of Civil Procedure. (ECF No. 54.) In accordance
with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)(g) D.S.C., the matter was referred to United
States Magistrate Judge Paige J. Gossett for pretrial handling.1 On July 26, 2016, the Magistrate
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The court observes that Plaintiff filed a Notice of Appeal (ECF No. 84) of the Order (ECF No.
73) entered by the court on July 20, 2016 (the “July Order”). In the July Order, the court
overruled Plaintiff’s Objections and denied his Appeal/Motion to Vacate (ECF No. 61) an Order
entered by the Magistrate Judge on February 29, 2016. (ECF No. 56.) The court has jurisdiction
to address this pending Report and Recommendation because adjudication of the issue will not
affect the appeal. E.g., Durham School Servs., L.P. v. Gen. Drivers, Warehousemen & Helpers,
Judge issued a Report and Recommendation (ECF No. 77) in which she recommended that the
court deny Lowe’s Motion to Dismiss “without prejudice to seek further relief, including
dismissal of the Complaint, if future circumstances so warrant, . . . .” (Id. at 4.) Plaintiff filed
Objections to the Magistrate Judge’s Report and Recommendation, which Objections are
presently before the court. (ECF No. 89.) For the reasons set forth below, the court ACCEPTS
the Magistrate Judge’s recommendation and DENIES Lowe’s Motion to Dismiss.
I.
RELEVANT BACKGROUND OF THE MATTER
On December 15, 2015, Lowe’s served Plaintiff with Interrogatories and Requests for
Production of Documents. (ECF No. 54-1 at 2–17.) When Lowe’s did not receive any discovery
responses from Plaintiff, Lowe’s attorney sent correspondence to Plaintiff on January 21, 2016,
requesting discovery responses in lieu of having to file a motion to compel. (ECF No. 54-2 at 2.)
On January 28, 2016, Plaintiff advised Lowe’s attorney by e-mail that Plaintiff intended to
answer the discovery requests, but was “unable to, not unwilling to, respond appropriately at this
time.” (ECF No. 54-3 at 2.)
Thereafter, on February 3, 2016, Lowe’s filed the instant Motion as a Motion to Compel
Discovery Responses or, in the alternative, Motion to Dismiss. (ECF No. 54.) After Plaintiff
failed to file a response to the Motion, the Magistrate Judge entered an Order on February 29,
2016, granting Lowe’s Motion to Compel, ordering Plaintiff to fully respond to Lowe’s
discovery requests by March 14, 2016, and holding in abeyance any ruling on the Motion to
Dismiss. (ECF No. 56.) On March 16, 2016, Lowe’s informed the court that “Sanders made
some disclosures following the court’s Order, but had not fully responded to its discovery
Local Union No. 509, No. 2:14-cv-1241-DCN, 2016 WL 1095498, at *2 (D.S.C. Mar. 21, 2016)
(“[N]otwithstanding the filing of a notice of appeal, district courts retain jurisdiction to determine
collateral and ancillary matters that do not affect the questions presented on appeal.”) (citing,
e.g., Langham-Hill Petroleum, Inc. v. S. Fuels Co., 813 F.2d 1327, 1330–31 (4th Cir. 1987)).
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requests.” (ECF No. 77 at 1 (referencing ECF No. 65 at 2).)
In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., the
Magistrate Judge, after reviewing the parties’ submissions, issued the aforementioned Report and
Recommendation on July 26, 2016.
(ECF No. 77.)
On August 11, 2016, Plaintiff filed
Objections to the Magistrate Judge’s Report and Recommendation. (ECF No. 89.)
II.
JURISDICTION
This court has jurisdiction over Plaintiff’s Title VII claim via 28 U.S.C. § 1331, as it
arises under a law of the United States, and also via 42 U.S.C. § 2000e–5(f)(3), which empowers
district courts to hear claims “brought under” Title VII. Additionally, the court has jurisdiction
over Plaintiff’s ADA claim via 28 U.S.C. § 1331, as the claim arises under a law of the United
States, and also via 42 U.S.C. §§ 12117 & 2000e–5(f)(3), which empower district courts to hear
claims by “person[s] alleging discrimination on the basis of disability.” The court may properly
hear Plaintiff’s state law claims based on supplemental jurisdiction since they are “so related to
claims in the action within such original jurisdiction that . . . it form[s] part of the same case or
controversy . . . .” 28 U.S.C. § 1367(a).
III.
A.
LEGAL STANDARD
The Magistrate Judge’s Report and Recommendation
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The court reviews de novo only
those portions of a magistrate judge’s report and recommendation to which specific objections2
2
An objection is specific if it “enables the district judge to focus attention on those issues—
factual and legal—that are at the heart of the parties’ dispute.” One Parcel of Real Prop. Known
As 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140,
147 (1985)).
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are filed, and reviews those portions which are not objected to - including those portions to
which only “general and conclusory” objections have been made - for clear error. Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198,
200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept,
reject, or modify, in whole or in part, the recommendation of the magistrate judge or recommit
the matter with instructions. See 28 U.S.C. § 636(b)(1).
B.
The Court’s Imposition of Sanctions
Rule 373 permits the district court to enter orders compelling discovery and to impose an
array of sanctions for the failure to comply with such orders. See Fed. R. Civ. P. 37(b)(2)(A).
Use of Rule 37 sanctions rests in the sound discretion of the district court.
Wilkins v.
Montgomery, 751 F.3d 214, 221 (4th Cir. 2014) (citing Saudi v. Northrop Grumman Corp., 427
F.3d 271, 278–79 (4th Cir. 2005)). Extensions and delay in providing discovery are a constant
problem and all sanctions provided for by Rule 37 must be available. Nat’l Hockey League v.
Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976) (dismissal must be available both to
sanction the parties before the court and to deter others from abusing the discovery process). To
dismiss an action under Rule 37, the court must consider “(1) whether the noncomplying party
acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary, which
necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the
need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less
drastic sanctions.” Mut. Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92
(4th Cir. 1989) (citation omitted). Nevertheless, in considering what sanctions are appropriate,
the court must focus on determining a sanction that fits the case at hand, considering the
potential harm to the party seeking discovery and the conduct of the non-producing party.
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The court observes that “Rule” refers to the Federal Rules of Civil Procedure.
4
Taylor v. Specialty Mktg., Inc., No. 91-3053, 1993 WL 21080, at *2 (4th Cir. Feb. 2, 1993).
Rule 41(b) authorizes a court “to dismiss an action for failure to prosecute or for failure
to comply with court orders.” Dusange-Hayer v. Karnalyte Res., Inc., C/A No. 2:15-4341-DCNBM, 2016 WL 5334682, at *4 (D.S.C. July 29, 2016). “Whether to dismiss under Rule 41(b) is a
matter for the Court’s discretion[.]” Id. (citing Davis v. Williams, 588 F.2d 69, 70 (4th Cir.
1978)). To dismiss an action under Rule 41, the court must consider “(1) the degree of personal
responsibility on the part of the plaintiff; (2) the amount of prejudice to the defendant caused by
the delay; (3) the presence or absence of a ‘drawn out history’ of ‘deliberately proceeding in a
dilatory fashion;’ and (4) the effectiveness of sanctions less drastic than dismissal.” Davis v.
Williams, 588 F.2d 69, 70 (4th Cir. 1978) (citation omitted).
IV.
A.
ANALYSIS
The Report and Recommendation
Upon her review, the Magistrate Judge concluded that because Plaintiff had “specifically
made some effort to comply with the court’s previous order granting the motion to compel[,] . . .
dismissal of his Complaint at this juncture would be premature and overly drastic at this stage, in
light of the fact that no lesser sanctions have been yet imposed.” (ECF No. 77 at 3.) As a result,
the Magistrate Judge recommended that the court deny Lowe’s Motion to Dismiss, but award it
“attorney’s fees and costs incurred in connection with the portion of . . . [Lowe’s] filing ECF No.
65 that addresses the deficiencies in Sanders’s response to the court’s order.”4 (Id.)
B.
Plaintiff’s Objections
In the document containing Plaintiff’s Objections to the Magistrate Judge’s Report and
Recommendation (ECF No. 89), Plaintiff does not expressly state opposition to the Magistrate
4
The Magistrate Judge ordered counsel for Lowe’s to file an affidavit of fees and costs on or
before August 24, 2016. (ECF No. 77 at 3.) Counsel for Lowe’s filed the Affidavit on August
22, 2016. (ECF No. 91.)
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Judge’s recommendation to deny Lowe’s Motion to Dismiss.
More specifically, Plaintiff
devotes the entirety of the document to seeking reconsideration of the Magistrate Judge’s
decisions to (1) enter a “defective and unenforceable” Scheduling Order (id. at 6); (2) grant
Lowe’s Motion to Compel and sanction Plaintiff (id. at 11–16); and (3) not appoint Plaintiff
counsel, recuse herself, or stay the matter. (Id. at 17–26.)
C.
The Court’s Review
Upon review, the court observes that Plaintiff did not assert specific objections to the
Magistrate Judge’s recommendation that the court deny Lowe’s Motion to Dismiss Plaintiff’s
Amended Complaint.
Therefore, the court is not required to provide de novo review of
Plaintiff’s general complaints about the Report and Recommendation, but must “only satisfy
itself that there is no clear error on the face of the record in order to accept the recommendation.”
Diamond, 416 F.3d at 315. In this regard, the court finds that the Report and Recommendation
does not contain clear error. Accordingly, the court overrules Plaintiff’s Objections.
V.
CONCLUSION
For the foregoing reasons, the court DENIES WITHOUT PREJUDICE Defendant
Lowe’s Home Centers, LLC’s Motion to Dismiss (ECF No. 54). The court ACCEPTS the
Magistrate Judge’s Report and Recommendation (ECF No. 77) and incorporates it herein by
reference.
IT IS SO ORDERED.
United States District Judge
September 27, 2016
Columbia, South Carolina
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