James v. Southeastern Grocers LLC et al

Filing 112

ORDER The Court adopts the Magistrate Judge's 109 Report and Recommendation and denies Defendant Southeastern Grocers, LLC's Renewed 104 Motion to Dismiss. The Court modifies the Magistrate Judge's Report a nd Recommendation to the extent that the discovery deadline is now March 16, 2020. The dispositive/Daubert motion deadline is now April 10, 2020. Plaintiff is ordered to fully respond to Defendant's remaining Requests for Document Production within fourteen (14) days of this Order. Signed by Honorable Richard M Gergel on 02/18/2020.(hada, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Willie Frank James, Jr. ,
Plaintiff,
v.
Southeastern Grocers, LLC, Dan Faketty,
Jennifer Powers,
Defendants.

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Civil Action No. 2: 18-cv-1031-RMG

ORDER

This matter is before the Court on the Report and Recommendation ("R. & R.") of the
Magistrate Judge {Dkt. No. 109) recommending that the Court deny Defendant Southeastern
Grocers LLC's Renewed Motion to Dismiss for failure to comply with discovery requirements
(Dkt. No . 104). For the reasons set forth below, the Court adopts the R. & R. as the order of the
Court, denies Defendant' s motion, orders Plaintiff to respond to Defendant's outstanding Requests
for Document Production, and orders the extension of discovery. The Court modifies the R. & R.
to the extent of the date by which Plaintiff must respond to Defendant's discovery requests and the
date by which discovery must be completed.

The Court also extends the deadline for

dispositive/Daubert motions.
I.

Background
Plaintiff filed this employment action on April 16, 2018, alleging that his former employer,

Defendant Southeastern Grocers LLC, unlawfully subjected him to unequal terms of employment
and terminated him because of race in violation of Title VII of the Civil Rights Act of 1964 ("Title

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VII") . (Dkt. No. 1). 1 Plaintiff is proceeding pro se and informa pauperis. (Dkt. No. 19). On July
15, 2019, this Court adopted a prior R. & R. from the Magistrate Judge and granted in part a motion
for sanctions against Plaintiff for repeated failures to comply with discovery requirements. (Dkt.
No. 76). Plaintiff complied with the sanctions order, and remitted payment of $250 to Defendant.
(Dkt. No. 80).
Discovery closed on September 23, 2019. (Dkt. No. 81.) Shortly thereafter, Defendant
again moved on October 2, 2019 for dismissal and sanctions, arguing that Plaintiff continued to
fail to comply with discovery obligations. (Dkt. No. 85.) On November 13, 2019, this Court
adopted a prior R. & R. and denied Defendant' s Motion to Dismiss, extended discovery deadlines,
and ordered Plaintiff to fully respond to Defendant's first request for document productions within
fourteen days. (Dkt. No . 96). Discovery was reopened, with the new deadline being December 20,
2019 and the dispositive/Daubert motion deadline being January 20, 2019. On November 11 ,
2019, on a motion by Defendant (Dkt. No. 98), the Court further extended the discovery deadline
to January 20, 2020 and the dispositive/Daubert deadline to March 20, 2020. (Dkt. No. 99).
On December 5, 2019, Defendant filed a Third "Motion to Dismiss as a Sanction for
Plaintiffs continued noncompliance with the [FRCP] and the Orders of This Court." (Dkt. No.
104). Plaintiff filed a response brief on January 10, 2020, (Dkt. No. 107), and Defendant filed a
reply on January 17, 2020, (Dkt. No. 108). The Motion is fully briefed and ripe for review.

II.

Legal Standard
A. Report and Recommendation

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The Court previously dismissed the two individual defendants, Dan Faketty and Jennifer Powers.
(Dkt. No. 45).

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The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S . 261, 270 - 71 (1976). This Court is charged with
making a de novo determination of those portions of the Report and Recommendation to which
specific objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). In
the absence of any specific objections, "a district court need not conduct a de novo review, but
instead must only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation." See Diamond v. Colonial Life & Accident Ins. Co., 416 F .3d 310, 315 (4th
Cir. 2005). No Party filed objections and the R & R is reviewed for clear error.

B. Sanctions
Rules 37 and 41 of the Federal Rules of Civil Procedure are part of a court's
"comprehensive arsenal of Federal Rules and statutes to protect themselves from abuse." LaFleur

v. Dollar Tree Stores, Inc., No. 2:12-CV-00363, 2014 WL 37662, at *3 (E.D. Va. Jan. 3, 2014)
citing Chambers v. NASCO, Inc., 501 U.S. 32, 62 (1991). Under Rule 37, a court must determine:
(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.

Anderson v. Found. for Advancement, Educ. & Employment of Am. Indians, 155 F.3d 500, 504
(4th Cir. 1998). A court must apply a similar four-part test when determining whether to dismiss
under Rule 41 :
( 1) the plaintiffs degree of personal responsibility; (2) the amount of prejudice
caused the defendant; (3) the presence of a drawn out history of deliberately
proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic
than dismissal.

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Billig v. Comm 'r, 916 F.2d 171, 174 (4th Cir. 1990). The standard for Rules 37 and 41 is "virtually
the same." Carter v. Univ. of W Virginia Sys. , Bd. of Trustees, 23 F.3d 400 (4th Cir. 1994).

III.

Discussion
After careful review of the R & R, the Court finds that the Magistrate Judge thoroughly

addressed the issues and correctly concluded that Defendant's motion be denied.
As the Magistrate Judge detailed, in his response to the instant motion, (Dkt. No. 107),
Plaintiff provided written responses to many, if not most, of Plaintiffs outstanding requests.
Defendant acknowledges as much.

(Dkt. No. 108 at 2) ("While Plaintiffs response finally

included responses to a number of Defendant's RFP, his responses remain incomplete."). As the
Magistrate Judge also noted, Plaintiff has still failed to provide written responses to several of
Defendant' s Requests for Production. Specifically, Plaintiff has failed to respond to Request Nos.
1, 2, 7, 10, and must respond to those requests.
Request No. 1 is for "all documents, correspondence, and communications related to any
claim or allegation stated in your Complaint and Supplemental Complaint." Request No. 2. is for
"all documents related to any defense stated in SEG's Answers." (Dkt. No. 85-2 at 26). In his
Response, Plaintiff did not provide written answers to these two RFPs, which he must do.
Request No. 7 is for "all documents or tangible items Plaintiff submitted to, or received
from, the EEOC or any state or local deferral [sic] agency concerning any charges, past or present,
of discrimination, harassment, or retaliation Plaintiff has filed against any employer other than the
Defendant." (Id. at 27) (emphasis added). Plaintiff must provide written responses to Request No.
7 and complete his production of any responsive documents or tangible items.
Request No. 10 is for "all documents relating to any employment (regardless of whether as

an employee, independent contractor, or otherwise) that Plaintiff has held with any employer after
Plaintiffs employment ended with SEO." (Dkt. No. 85-02 at 27). In his deposition, Plaintiff stated
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he had not received any discipline while working at his current job as a "loss prevention manager"
at Lowe ' s, adding "I' ve only gotten praises. Which I can provide, by the way. " (Dkt. No . 108-1
at 5). In his Response to Defendant's current motion, however, Plaintiff, who is proceeding pro

se, asserts that he cannot produce documents relating to his employment with Lowe's because
"they would be applications that get submitted and retained by the company." (Dkt. No. 107 at 6).
Under Federal Rule of Civil Procedure 45 , a litigant, such as Defendant, can subpoena a third
party, such as Lowe ' s, to obtain the documents in question. Plaintiff must produce documents
responsive to Request No. 10, but both parties should bear in mind the methods by which pertinent
discovery may be obtained.
Next, Defendant states Plaintiff referenced specific documents during his deposition and
that Defendant requested Plaintiff produce those documents. (Dkt. No. 108-1 ). The documents
Defendant is seeking were originally identified by Plaintiff in his "Response to Interrogatory" as
pertaining to "information on people who know or have information regarding plaintiffs [sic] work
history. " (Dkt. No . 68). During Plaintiffs deposition, Defendant asked about said documents and
Plaintiff testified he: (1) emailed and texted with Bryan Pascal and that (2) Plaintiff received an
email in June 2016 from Bill Jones. Defendant asserts these documents would be responsive to
Request Nos. 5, 21 , and 22 . Pertinently, Request No. 5 is for "all documents, audio and video
recordings, and other items identified, consulted, or relief upon in drafting Plaintiffs answers to
Defendant's First Set oflnterrogatories to Plaintiff." (Dkt. No. 85-2 at 26).
As it pertains to the communications with Pascal, Plaintiff must produce those documents.
As it pertains to the email with Jones, however, it appears Plaintiff has complied with Defendant' s
request because he has produced, at the least, an undated version of this document in his Response
to Defendant ' s current motion. (Dkt. No. 107-1 at 64).

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Lastly, the parties debate whether Plaintiff has produced: (a) "the full 2 hour, 51 minute,
and 10 second recording of a conversation between himself and his supervisor, Patrick Johnson,"
and (b) "another recording of a conversation between himself, Dan Faketty, and Jennifer Powers
following the termination of his employment." (Dkt. No. 108 at 4). In his Complaint, Plaintiff
explicitly described the existence of both conversations. (Dkt. No. 1 at 8, 10). Defendant asserts
Plaintiff has only produced "unverified transcripts" of the recordings and a four minute and fiftyfour second recording of a conversation with Johnson. (Dkt. No. 108-3; Dkt. No. 108-4).
Defendant asserts that such recordings would be responsive to Request Numbers 1, 5, 9, 16, 21 ,
26, and 29. Plaintiff, on the other hand, claims he forwarded the requested files . (Dkt. No. 107 at
5).
From the information the Court has before it, the following appears to have occurred. On
October 13, 2019, Plaintiff emailed Defendant a transcript of the conversation between Faketty
and Powers, which Defendant could not open and which Defendant requested Plaintiff resend as a
PDF or Word document. (Dkt. No. 107-1 at 7). Plaintiff obliged and sent Defendant a PDF version
of the document that evening. (Dkt. No. 108-2 at 1). While labeled "Official Dan Facketty and
Jeniffer Ppages.pdf," the transcript contains no authentication and contains commentary by
Plaintiff, supporting his case, embedded in the transcription. On October 25, 2019, Plaintiff
emailed Defendant what purported to be a transcript in PDF format of his 2 hour 51 minute
conversation with Johnson, but which is more accurately described as a list of time stamps
identified at Plaintiffs discretion. (Dkt. No. 108-2 at 15-17). On October 25, 2019, Plaintiff also
sent Defendant an audio file labeled "Conversation with Patrick Johnson," which was in fact a 4
minute 54 second conversation between Plaintiff and Faketty and Powers. (Dkt. No. 108-3 at 12). On December 9, 2019, Plaintiff emailed Defendant, sharing via Dropbox what was supposed

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to be the 2 hour 51 minute conversation with Johnson. (Dkt. No. 107-1at13). Defendant claims
it never received this last email. (Dkt. No. 108 at 4).
As the Magistrate Judge determined in the R. & R., the full recordings of both
conversations must be produced.

To the extent Plaintiff shared the full 2 hour 51 minute

conversation with Johnson via DropBox and Defendant cannot access that file, Plaintiff, who is
proceeding prose, and Defendant, who is not, should work together and find reasonable means to
permit Defendant to copy said conversation. The same goes for obtaining a copy of the full
conversation between Plaintiff and Faketty and Powers, to the extent Plaintiff has one but has not
produced it.
Plaintiff is explicitly warned that if he does not produce the documents and recordings in
question, he may not be able to rely on or refer to this evidence in support of his claims at future
points in this litigation. Further, if these materials are not produced, and if this case proceeds past
summary judgement, Plaintiffs failure to produce this discovery could result in an adverse
instruction to the jury, wherein the jury could infer facts about the missing evidence in a way that
is harmful to Plaintiffs case. Fed. R. Civ. P. 37.

IV.

Conclusion

For the foregoing reasons, the Court ADOPTS the Magistrate Judge's Report and
Recommendation (Dkt. No. 109) and DENIES Defendant Southeastern Grocers, LLC's Renewed
Motion to Dismiss (Dkt. No. 104). The Court MODIFIES the Magistrate Judge's Report and
Recommendation to the extent that the discovery deadline is now March 16, 2020.

The

dispositive/ Daubert motion deadline is now April 10, 2020. Plaintiff is ORDERED to fully
respond to Defendant's remaining Requests for Document Production within FOURTEEN (14)
DAYS of this Order.

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AND IT IS SO ORDERED.

Richard Mark Gerge
United States District Court Judge

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February
2020
Charleston, South Carolina

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