James v. Southeastern Grocers LLC et al

Filing 96

ORDER RULING ON REPORT AND RECOMMENDATION The Court ADOPTS the Magistrate Judge's Report and Recommendation (Dkt. No. 93 ) and DENIES Defendant Southeastern Grocers, LLC's Motion to Dismiss (Dkt. No. 85 ). Discov ery is reopened and the Discovery deadline is now December 20, 2019, and the dispositive/Daubert motion deadline is now January 20, 2019. Finally, Plaintiff is ORDERED to fully respond to Defendant's First Request for Document Production within FOURTEEN (14) DAYS of this Order. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 11/13/2019. (sshe, )

IN THE UNITED ST ATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

Willie Frank James, Jr.,
Plaintiff,
V.

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

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ORDER

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Southeastern Grocers, LLC, Dan Faketty,
Jennifer Powers,
Defendants.

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This matter is before the Court on the Report and Recommendation ("R & R") of the
Magistrate Judge (Dkt. No. 93) recommending that the Court deny Defendant Southeastern
Grocers LLC's Motion to Dismiss for failure to comply with discovery requirements (Dkt. No.
85). For the reasons set forth below, the Court adopts the R & Ras the order of the Court, denies
Defendant's motion at this time, orders Plaintiff to respond to Defendant's First Request for
Document Production, and extends the discovery and dispositive Motion deadlines.

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
VII"). (Dkt. No. 1.) 1 Plaintiff is proceeding prose 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.

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

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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.) The Magistrate Judge, reviewing the
record and outstanding discovery in detail, found that while Plaintiff had failed to comply with
certain requirements, such as fully responding to Defendant's first request for document
productions, significant progress nonetheless had been made since the Court' s prior award of
sanctions, such as Plaintiff appearing for his deposition and providing certain discovery materials.
(Dkt. No. 93 .) The Magistrate Judge therefore issued an R & R recommending that the Court deny
Defendant's Motion to Dismiss, extend relevant deadlines, and order Plaintiff to fully respond to
Defendant' s first request for document productions within fourteen days. (Id.) Notably, the
Magistrate Judge also included a stem warning for Plaintiff that any continued failure to comply
with discovery obligations or order of this Court may result in dismissal of his case with prejudice.
(Id. at 10- 11.) No party has filed objections.

II.

Legal Standard
A. Report and Recommendation
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
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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.
Hillig 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

As the Magistrate Judge detailed, progress has been made since the Plaintiff complied with
the sanction requirement. (Dkt. No. 93.) The Court adopts in its entirety the reasoning of the
Magistrate Judge and similarly adopts the directions and warnings included in the R & R directed

at the Plaintiff. Namely, Rules 33 and 34 of the Federal Rules of Civil Procedure, detailing the
deadlines for responding to interrogatories and document requests, both require a party to respond

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to the discovery request within 30 days, absent other court order or stipulation, neither of which
are present here. Plaintiff was therefore required to comply with these deadlines. Nonetheless, at
this time, given the progress made in discovery and the lack of objection, the Court finds it
appropriate to reopen discovery, extend the discovery and dispositive motions deadlines, permit
Defendant to re-depose Plaintiff based on any newly served discovery, and order Plaintiff to fully
respond to Defendant's first request for document production within fourteen days of this order.
However, the Plaintiff is warned that further failures to comply with the rules regarding discovery
or this Court' s Orders may cause his case to be dismissed with prejudice.
IV.

Conclusion

For the foregoing reasons, the Court ADOPTS the Magistrate Judge ' s Report and
Recommendation (Dkt. No. 93) and DENIES Defendant Southeastern Grocers, LLC ' s Motion to
Dismiss (Dkt. No. 85). Discovery is reopened and the Discovery deadline is now December 20,
2019, and the dispositive/Daubert motion deadline is now January 20, 2019. Finally, Plaintiff is

ORDERED to fully respond to Defendant' s First Request for Document Production within
FOURTEEN (14) DAYS of this Order.
AND IT IS SO ORDERED.

rgel
United States District Court Judge
November /.J.., 2019
Charleston, South Carolina

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