Potter v. SunTrust Bank et al, No. 3:2014cv00436 - Document 59 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 8/31/2015. Copy mailed to Pro Se Plaintiff. (jsmi, )
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Potter v. SunTrust Bank et al Doc. 59 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION D. SIDNEY POTTER, Plaintiff, v. Action No. 3:14-CV-436 SUNTRUST BANK, et al., Defendants. MEMORAN D U M OPIN ION THIS MATTER is before the Court on Defendants’ Motion to Dism iss Plaintiff’s Com plaint (“Motion”) filed on August 3, 20 15. ECF No. 52. (“Plaintiffs”), proceeding pro se, did not file a response. Plaintiff D. Sidney Potter For the reasons set forth below, Defendants’ Motion will be GRANTED. ECF No. 52. Plaintiff, proceeding pro se, filed this em ploym ent discrim ination action on J une 17, 20 14. Plaintiff alleges that Defendants Randstad US, L.P. (“Randstad”) and SunTrust Mortgage, Inc. (incorrectly identified in the Com plaint as “SunTrust Bank”) (“SunTrust”) (collectively “Defendants”) subjected him to reverse race discrim ination. Defendants filed a m otion to dism iss the individual defendants and a partial m otion to dism iss the Com plaint, which the Court granted on October 23, 20 14. ECF Nos. 32, 33. On April 3, 20 15, the parties subm itted a Proposed J oint Discovery Plan containing a deadline of April 30 , 20 15 for the exchange of their Fed. R. Civ. P. 26(a)(1) Initial Disclosures. ECF No. 41, at 1. On April 30 , 20 15, the Court held a Pretrial Conference and issued its Scheduling and J ury Pretrial Order, which established August 26, 20 15 as the discovery deadline. ECF No. 44, at 3. On J une 3, 20 15, Defendants filed a Notice of Defendants’ Attem pts To Com ply With Paragraphs 6 and 7 of the Court’s Scheduling Order, after m aking several unsuccessful attem pts to m eet and confer with Plaintiff regarding written stipulations of uncontroverted facts and 1 Dockets.Justia.com potential settlem ent of the case, in accordance with the instructions and deadline in the Court’s Scheduling Order. Mem orandum of Law in Support of Defendants’ Motion to Dism iss Plaintiff’s Com plaint (“Defs.’ Mem .”). On J une 18, 20 15, Defendants filed a Motion to Com pel Plaintiff’s initial disclosures and responses to Defendants’ written discovery (“Motion to Com pel”) after Plaintiff failed to respond to m eet and confer com m unications from Defendants and produce his initial disclosures or responses to Defendants’ written discovery requests by their deadlines of April 30 and J une 7, 20 15. ECF No. 46. Plaintiff did not file a response to Defendants’ Motion to Com pel. On J uly 15, 20 15, Plaintiff filed a “Motion to Reset Trial,” in which he sought a 180 -day extension of the trial date and all pretrial deadlines because “tim e constraint issues m a[de] it difficult for the Plaintiff to be responsive to som e of the present deadlines.” ECF No. 49. Although Plaintiff failed to m eet and confer about settlem ent as required under the Scheduling Order, Plaintiff also represented that all rem aining deadline needed to be extended so that the parties could continue “active settlem ent negotiations.” Id. On J uly 17, 20 15, the Court granted Defendan t’s Motion to Com pel and ordered Plaintiff to im m ediately produce his initial disclosures and discovery responses. ECF No. 50 . On J uly 20 , 20 15, defense counsel sent a copy of the Court’s Order to Plaintiff via electronic m ail and directed him to provide his initial discovery responses by J uly 23, 20 13. See Defs.’ Mem . Ex. 1 (“Decl. of Toni J . Read”) at ¶ 2. On J uly 23, 20 15, Plaintiff sent defense counsel an e-m ail stating that due to his “busy schedule a delay in the proceedings would have to be accom plished.” Id. at Ex. A. As of the date of the instan t Motion, Plaintiff failed to produce his initial disclosures or discovery responses. Id. at 4. This Court has clear authority to dism iss a plaintiff’s com plaint in appropriate cases. See Link v. W abash R.R. Co., 370 U.S. 626, 629 (1962) (observing that a court has authority to perm anently "clear its calendar of cases that have rem ained dorm ant because of the inaction or dilatoriness of the parties seeking relief”). Pursuant to Rules 37(b)(2)(A)(v) and 41(b) of the 2 Federal Rules of Civil Procedure, a court m ay dism iss a plaintiff’s claim s in he fails to abide by the Federal Rules of Civil Procedure or any court order. Such a dism issal is within the sound discretion of the court. Anderson v. Found for Advancem ent, 155 F.3d 50 0 , 50 4 (4th Cir. 1998). In considering whether to im pose sanctions pursuant to Rule 37, the court m ust consider four factors: (1) the degree of the non-com plying party's bad faith; (2) the prejudice suffered by the other party as a result of the failure to com ply; (3) the deterrence value of dism issal as a sanction; and (4) the efficacy of a less drastic sanction. M ut. Fed. Sav. & Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989). A virtually identical test applies to dism issal pursuant to Rule 41, whereby a court m ust consider: (1) the degree of the plaintiff's personal responsibility for the failure to com ply; (2) the prejudice caused to the defendant; (3) the plaintiff's history of deliberately proceeding in a dilatory fashion; and (4) the availability of a less drastic sanction. Ballard v. Carlson, 8 82 F.2d 93, 95 (4th Cir. 1989); see also Clatterbuck v . Charlottesville, 3:11CV0 0 0 43, 20 13 WL 4929519, at *3 (W.D.Va. Sept.12, 20 13) (“The legal standard for dism issals under Rule 37 is virtually the sam e as that for dism issals for failure to prosecute under Rule 41.”). Addressing the first of the four aforem entioned factors, Defendants first argue that Plaintiff alone is responsible for his dilatory conduct and failure to prosecute his case. They assert that he solely is responsible for failing to take the initiative in the litigation since he is proceeding pro se. Specifically, Defendants assert that Plaintiff failed to conform to the Federal Rules of Civil Procedure, abide by the orders of this Court, or otherwise take any action to prosecute his case in the thirteen (13) m onths that it has been on this Court’s docket. Defendants argue that Plaintiff “has filed at least one other lawsuit involving sim ilar allegations and appears to have a history of deliberately frustrating defense efforts to prepare for trial.” Def.’s Mem . at 6. As to his failure to obey the Court’s discovery order, Defendants represent that Plaintiff has not offered any excuse for his conduct and appears to have no intention of com plying. According to Defendants, Plaintiff is entirely responsible for his own efforts to 3 thwart Defendants’ discovery efforts. That Plaintiff is proceeding pro se does not relieve him of his duty to abide by the rule and orders of the Court, says Defendants. Turning to the prejudice suffered by the other party as a result of the failure to com ply com ponent of the analysis, Defendants argue that Plaintiff’s deliberate behavior prejudices Defendants and warrants dism issal of his com plaints. To support their position, Defendants assert the following: (1) the discovery period an d dispositive m otion deadlines in this case are less than a m onth away, yet Plaintiff still refuses to produce his Initial Disclosures and (2) Plaintiffs refused to respond to Defendant’s First Set of Interrogatories and Requests for Production of Docum ents that were served on him several m onths ago. Id. at 7. As such, Defendants were unable to prepare their defense by issuing subpoenas for docum ents, interviewing witnesses, scheduling depositions, and identifying expert witnesses. Additionally, Defendants argue that the need for deterrence of conduct like that dem onstrated by Plaintiff is significant. Indeed, Defendant argues, “[a]ny litigant’s disregard for court orders that require disclosure of inform ation directly related to claim s and dam ages is behavior that m ust be deterred.” Id. (citing M ut. Fed. Sav. & Loan Ass'n, 872 F.2d 88, 93 (4th Cir. 1989) (upholding the district court's findin g that sim ilar tactics by a party “m ust obviously be deterred”). Specifically, Defendants argue that Plaintiff fails to conform to the Federal Rules of Civil Procedure and abide by the order of the court and, as such, his behavior warrants deterrence regardless of his pro se status. See id. (citing Ballard, 88 2 F.2d at 96 (dism issing pro se plaintiff’s com plaint with prejudice and noting that the Court has “little alternative to dism issal,” for “[a]ny other course would [] place[] the credibility of the court in doubt and invite[] abuse.”); Zaczek v. Fauquier Cnty , 764 F. Supp. 10 71, 10 77 (E.D. Va. 1991) (“[p]ro se litigants are not im m une from any sanction by virtue of their status alone. . . . There is . . . no doubt that pro se litigants are subject to any and all appropriate sanctions for their m isconduct.”)). Defendants argue that Plaintiff has failed to produce his initial disclosures by the April 30 , 20 15 deadline. Id. at 8. They also argue that Defendants’ counsel’ repeated 4 requests that he provide them with this inform ation and still has not produced it to date. Id. Likewise, Plaintiff did not respond to any of defense counsel’s efforts to obtain his discovery responses and he did not oppose Defendants’ Motion to Com pel. Id. Most significantly, since filing his Com plaint over 13 m onths ago, Plaintiff failed to propound any written discovery by the Court-ordered deadline and he has not filed any docum ents that would m ove his case towards a conclusion on the m erits. Id. These are only a few exam ples of the alleged dilatory conduct. According to Defendants, “Plaintiff’s well-docum ented history of proceeding in a dilatory fashion is in bad faith and weights in favor of dism issing his Com plaint.” Id. at 9. Finally, Defendants argue that dism issal is the only sanction which will deter Plaintiff’s disregard for the authority of the Court and the Federal Rules of Civil Procedure. Dism issal will “send ‘the unm istakable m essage to [Plaintiff] and others that the judicial system will not tolerate repeated m isconduct.’” Id. at 10 (quoting Mut. Fed. Sav. & Loan Assn., 872 F.2d at 93). Plaintiff is proceeding in form a pauperis; therefore, Defendant’s assert that im posing a m onetary penalty against him is not feasible and has no value as a deterrent. Id. at 11. Sim ilarly, Defendants argue, precluding Plaintiff from introducing evidence that he was required to disclose in his initial disclosures or in response to discovery requests is not a feasible sanction because he failed to produce any initial disclosures or any discovery responses. Id. As Defendants argue, Plaintiff has not been diligent in prosecuting this case. In fact, he even failed to file a response to the instant Motion. As to the first factor, in the present case, Plaintiff is proceeding pro se so he is entirely responsible for his actions. It is solely through Plaintiff’s neglect, not that of any attorney, that no responses have been filed. Plaintiff’s correspondence to Defendants and his filings with this Court have been am bivalent at best and dem onstrate no regard for the Federal Rules of Civil Procedure or the authority of the Court. For exam ple, even after this Court ordered Plaintiff to produce his initial disclosures and discovery responses forthwith on J uly 17, 20 15, ECF No. 50 , Plaintiff still has not provided such responses. Furtherm ore, Plaintiff has tendered no reason 5 why his discovery responses and initial disclosures have not been produced in the intervenin g m onths since they were due other than to flippantly assert that he is “exceptionally busy.” Additionally, Plaintiff failed to m eet and confer with Defendants about proposed factual stipulations or potential settlem ent by the deadline established in the Court’s Pretrial Order. See ECF No. 45. Finally, Defendants assert that contrary to Plaintiff’s affirm ation, the parties are not engaged in settlem ent negotiations. Defs.’ Mem . at 3. The second factor is decided in Defendant’s favor. Defendant is certainly prejudiced by Plaintiff’s failure to produce his Initial Disclosures and respond to Defendant’s First Set of Interrogatories and Requests for Production of Docum ents that were served on him several m onths ago. As to the third factor, Plaintiff has a history of dilatory conduct in this case. For exam ple, as Defendants point out, he failed to produce his initial disclosures by the April 30 , 20 15 deadline. Plaintiff also ignored Defendants’ counsel’ repeated requests that he provide them with this inform ation and still has not produced it to date. Likewise, Plaintiff did not respond to any of defense counsel’s efforts to obtain his discovery responses and he did not oppose Defendants’ Motion to Com pel. Finally, as to the fourth factor, this Court considers the availability of less drastic sanctions. Based on the aforem entioned exam ples dem onstrating Plaintiff’s long history of delay and refusal to take initiative in the litigation, the Court concludes that Plaintiff has abandoned this lawsuit. No other reasonable sanctions are available. A review of the record indicates that the Plaintiff’s Com plaint should be dism issed for failure to prosecute. As such, the Court will GRANT Defendants’ Motion. ECF No. 52. Accordingly, Defendants’ Motion to Extend the Discovery and Dispositive Motion Deadlines is hereby DENIED AS MOOT. ECF No. 57. 6 Let the Clerk send a copy of this Mem orandum Opinion to all counsel of record and to Potter. An appropriate Order shall issue. ENTERED this 31st _____________________/s/________________ James R. Spencer Senior U. S. District Judge day of August 20 15. 7
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