Jenkins v. South Carolina Electric and Gas

Filing 73

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; DISMISSES WITH PREJUDICE the Complaint. Signed by Honorable Richard M Gergel on 2/19/2016.(cwhi, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Civil Action No. 2:14-4139-RMG

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Walter Cabot Jenkins,
Plaintiff,

v.
South Carolina Electric and Gas,
Defendant.

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ORDER

This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending that this action be dismissed with prejudice under Rule 41(b) of the Federal
Rules of Civil Procedure if Plaintiff fails to indicate his willingness to pay an assessment of the
costs incurred by his own misconduct. For the reasons given below, the Court adopts the Report
and Recommendation as the Order of this Court and dismisses the action with prejudice.

I.

Background
In this pro se action filed on October 23, 2014, Plaintiff alleges that he was wrongfully

terminated from his employment with Defendant on or about December 18, 2012 due to a disability
(diabetes coupled with depression and panic disorder symptoms), in violation of the Americans
with Disabilities Act. By Order filed May 28, 2015, the discovery deadline in this case was set for
September 28,2015. In an Order filed September 2, 2015, the Court granted Defendant's motion
to compel Plaintiff to supplement his responses to Defendant's Interrogatories and Requests for
Production of Documents. Plaintiff did not respond to Defendant's motion to compel. The Order
advised Plaintiff that a failure to comply with the Court's Order could result in the imposition of
sanctions. (Dkt. No. 42.)

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On September 24, 2015, the Defendant filed a motion to amend the scheduling order,
noting that while Plaintiff had filed some supplemental discovery responses, Defendant was still
awaiting medical records and copies of tax returns, following receipt of which it would still need
to take Plaintiff's deposition. An Order was then entered extending the discovery deadline for
sixty days, to November 27, 2015. (Dkt. No. 46.) On October 16,2015, the Defendant filed a
motion to enforce the Court's Order of September 2, 2015, noting that Plaintiff had still failed to
provide copies of the requested tax returns and that Plaintiff was refusing even to respond to
requests from defense counsel. Plaintiff did not file a response to the Defendant's motion by the
deadline for doing so; two weeks later he submitted a response stating that his "wife would not
sign document or tax form." On December 1, 2015, the Court granted Defendant's motion to
enforce the Court's Order of September 2, 2015. (Dkt. No. 57.) That Order placed Plaintiff on
notice that, having brought this lawsuit, he had voluntarily subjected himself to the discovery rules
of this Court, and that failure to comply could result in dismissal under Ru1e 41(b) of the Federal
Ru1es of Civil Procedure. Plaintiff was then given a deadline of December 11, 2015 to provide
the requested information. Finally, the discovery deadline was again extended, to January 27,
2016.
On January 20, 2016, Defendant filed a motion for protective order to stay discovery
pending the filing of a dispositive motion by the Defendant, on the basis of Plaintiff s refusal to
cooperate with his deposition. During Plaintiffs deposition, Plaintiff responded with a version of
"I don't recall" or "I don't know" 304 times. The Magistrate Judge reviewed the deposition
transcript and found that "'throughout the entirety of his deposition, Plaintiff was wholly
uncooperative, presented a sheer unwillingness to prosecute his case, and failed to provide any
facts whatsoever in support of his claims against [] Defendant.'" (R. & R. 3 (quoting Defendant's

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motion for protective order).) The Court granted Plaintiff's motion on February 1, 2016. The
Court also denied a motion to compel from Plaintiff, in which Plaintiff asking for an order allowing
him to take the depositions of three individuals. When asked during his deposition why he had
noticed the deposition ofthose persons and how they are relevant to his claims, Plaintiff responded,
"I do not know." (Jenkins Dep. Tr. 108-10, Dkt. No. 67.)

II.

Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation

has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific objection is
made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
When a proper objection is made to a particular issue, "a district court is required to
consider all arguments directed to that issue, regardless of whether they were raised before the
magistrate." United States v. George, 971 F.2d 1113,1118 (4th Cir. 1992). However, "[t]he
district court's decision whether to consider additional evidence is committed to its discretion, and
any refusal will be reviewed for abuse." Doe v. Chao, 306 F.3d 170,183 & n.9 (4th Cir. 2002).
"[A]ttempts to introduce new evidence after the magistrate judge has acted are disfavored," though
the district court may allow it "when a party offers sufficient reasons for so doing." Caldwell v.

Jackson, 831 F. Supp. 2d 911, 914 (M.D.N.C. 2010) (listing cases).

III.

Analysis
The Court dismisses this action with prejudice pursuant to Rule 41 (b) of Federal Rules of

Civil Procedure. Whether to dismiss under Rule 41 (b) is a matter for the Court's discretion. Davis
v. Williams, 588 F.2d 69, 70 (4th Cir. 1978). The Fourth Circuit provides a four-prong test for
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Rule 41 (b) dismissal that requires courts to consider: (1) the degree of personal responsibility of
the Plaintiff; (2) the amount of prejudice caused the Defendant; (3) the existence of a "drawn-out
history of deliberately proceeding in a dilatory fashion"; and (4) the existence of sanctions less
drastic than dismissal. Chandler Leasing Corp. v. Lopez, 669 F.2d 919,920 (4th Cir. 1982). The
Magistrate Judge applied this test in the Report and Recommendation and Court agrees with the
Magistrate Judge's analysis: Plaintiffs personal responsibility is manifest, Plaintiff has
"prejudiced the Defendant's ability to ascertain the facts and prepare a defense in this action,"
there is a "drawn-out history of deliberately proceeding in a dilatory fashion," and the only
available sanction less drastic than dismissal is a monetary penalty. (R. & R. 5.) In an attempt to
identify some possible sanction less drastic that dismissal, the Magistrate Judge recommends
assessing to Plaintiff the costs that Plaintiffs misconduct has inflicted on Defendant, but "only if
Plaintiff, in response to this Report and Recommendation, indicates a willingness to abide by these
conditions and to henceforth properly pursue his claims." (R. & R. 6.)
In response to the Report and Recommendation, "Plaintiff objects to the recommendation
that he pays Defendant fees and costs. Plaintiffs conduct was not against the rule of law pursuant
to [R]ule [] 41(b) Fed.R.Civ.P." Plaintiff also asserts "[h]owever in response[,] [t]he Plaintiff is
willing to continue with this prosecution of this case and to comply with the rules of this court."
(Dkt. No. 72.) That does not indicate willingness to abide by the condition of paying costs.
Plaintiff was not asked ifhe was willing to comply with the rules, he was asked ifhe was willing
to pay a monetary penalty as a condition for being allowed to continue prosecuting his case. His
answer, clearly, is no.

The Magistrate Judge "finds that Plaintiff's refusal to meaningfully

participate in his own deposition or otherwise cooperate in the prosecution of this case would

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justify the entry of an order of dismissal." (R. & R. 5.) The Court agrees and dismisses this case
with prejudice.
IV.

Conclusion
For the foregoing reasons, the Court ADOPTS the Report and Recommendation (Dkt. No.

69) as the Order ofthis Court and DISMISSES WITH PREJUDICE the Complaint.
AND IT IS SO ORDERED.

Richard Mark
United States District Court Judge

February 4,2016
Charleston, South Carolina

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