United States District Court, D. Maryland, Southern Division
W. Grimm United States District Judge
Jimmy Lance, who is proceeding pro se, filed this
action against Defendant Megabus Northeast, LLC
(“Megabus”) on October 17, 2016, alleging racial
discrimination and retaliation. Compl., ECF No. 1. But, since
then, he has done little to prosecute his case. Moreover, he
had repeatedly failed to follow Court orders or the Federal
Rules of Civil Procedure or to respond to discovery requests.
Accordingly, I will grant Megabus's Motion for Sanctions,
ECF No. 21, and dismiss this case.
Court's Discovery Order required Plaintiff to
“provide to the Court [and the Defendant] information .
. . regarding calculation of damages” and a
“particularized statement regarding any non-monetary
relief sought” by February 28, 2017. ECF No. 11;
see also Fed. R. Civ. P. 26(a)(1)(iii) (requiring
damages disclosure). Similarly, the Scheduling Order set a
damages disclosure deadline of February 28, 2017. ECF No. 10.
I held a Rule 16 scheduling conference call on March 7, 2017
and reviewed both of these orders. ECF No. 12. Plaintiff
participated in that call, yet did not file a calculation of
damages as ordered.
March 24, 2017, Megabus sent a letter to Plaintiff requesting
that he file the required information by April 5, 2017. Mar.
24, 2017 Ltr. to Pl., ECF No. 21-2. Again, Plaintiff failed
to do so. Megabus also propounded Interrogatories and
Requests for Production of Documents on Plaintiff on March
24, 2017. Notice of Service of Discovery, ECF No. 21-3. The
responses to the Interrogatories and Requests were due on
April 23, 2017, see Fed. R. Civ. P. 33(b)(2),
34(b)(2)(A), and Plaintiff failed to respond. May 9, 2017
Ltr. to Pl., ECF No. 21-4.
response to Defendant's May 9, 2017 letter informing
Plaintiff that his responses were overdue, Plaintiff emailed
Defense counsel on May 21, 2017 that he did not
“remember the judge asking [him] to [be] interrogated,
nor request of Producing documents, ” and that his
“understand[ing] was that [the parties] should be
coming to an agreement on the settlement of this case.”
Emails, ECF No. 21-5. Defense counsel responded that,
although Megabus was willing to discuss settlement, Lance
still needed to respond to the discovery requests.
Id. On May 23, 2017, Lance emailed that he would
“be looking into the responded to [sic] the discovery
requests and producing requested documents.”
Id. Megabus informed Lance that, if it did not
receive his discovery responses by June 9, 2017, it would
file a motion to compel and/or for sanctions. Id.
7, 2017, Defendant followed the procedure set out in the
Court's Letter Order dated October 21, 2016, ECF No. 3,
and requested a pre-motion conference in an attempt to
resolve the discovery dispute, i.e., Lance's utter
failure to provide any discovery responses or damages
disclosure. ECF No. 17. I held a pre-motion conference call
on June 30, 2017, which I memorialized in a Letter Order on
July 6, 2017, stating that Plaintiff “must file his
damages calculations by July 14, 2017 and respond to
Defendant's discovery requests, ” and cautioning
Lance that failure to do so could subject him to sanctions,
including dismissal of his action. ECF No. 20. Lance stated
that he understood what was expected of him. I also ordered
Defendant to resend its Rule 33 and Rule 34 discovery
requests, which Defendant did on June 30, 2017. Email, ECF
No. 21-6. Plaintiff still did not provide his damages
disclosure or respond to Megabus's discovery requests.
filed a Motion for Sanctions, seeking dismissal of this
action based on Lance's persistent failure to comply with
this Court's orders or participate in discovery. On July
14, 2017, he attempted to file a Response to Request for
Production of Documents with the Court, ECF No. 23-1, but it
was returned to him because discovery materials are not to be
filed with the Court. Plaintiff has not opposed
Defendant's motion, and the time for doing so has passed.
See Loc. R. 105.2(a). Nor has he demonstrated to the
Court that he has provided complete and unevasive responses
to Megabus's discovery requests, as Federal Rules of
Civil Procedure 33, 34, and 37(a)(4) and my July 6, 2017
Letter Order require. And, to date, he has not filed a
calculation of damages.
courts have the authority to dismiss cases under Fed.R.Civ.P.
37(b)(2)(A) when a party fails to comply with a discovery
order, as well as under Fed.R.Civ.P. 37(d) and 41(b) as part
of the courts' “comprehensive arsenal of Federal
Rules and statutes to protect themselves from abuse.”
Chambers v. NASCO, Inc., 501 U.S. 32, 62 (1991).
Rule 37(b) provides that the Court may “dismiss the
action or proceeding in whole or in part” if a party
“fails to obey an order to provide or permit
discovery.” Fed.R.Civ.P. 37(b)(2)(A)(v). Likewise, Rule
37(d) provides that the Court may order sanctions, including
dismissal, if “a party, after being properly served
with interrogatories under Rule 33 or a request for
inspection under Rule 34, fails to serve its answers,
objections, or written response.” Fed.R.Civ.P.
37(d)(1)(A)(ii), (d)(3). Further, Fed.R.Civ.P. 41(b) provides
that the Court may dismiss an action “[i]f the
plaintiff fails to prosecute or to comply with . . . a court
“[d]ismissal with prejudice is ordinarily reserved for
the most egregious cases.” Sadler v. Dimensions
Health Corp., 178 F.R.D. 56, 59 (D. Md. 1998) (citing
Dove v. Codesco, 569 F.2d 807, 810 (4th Cir. 1978),
in which the Court stated that dismissal with prejudice under
Rule 41(b) was only for “clear record of delay or
contumacious conduct by the plaintiff”). Indeed,
“only the most flagrant case, where the party's
noncompliance represents bad faith and callous disregard for
the authority of the district court and the Rules, [should]
result in the extreme sanction of dismissal or judgment by
default.” Mut. Fed. Sav & Loan Ass'n v.
Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir.
1989). To that end, before ordering dismissal under Rule
37(b) or (d), the Court applies a four-factor test:
“(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.” Bethesda
Softworks LLC v. Interplay Entm't Corp., No.
DKC-09-2357, 2011 WL 1559308, at *2 (D. Md. Apr. 25, 2011)
(quoting Belk v. Charlotte-Mecklenburg Bd. of Educ.,
269 F.3d 305, 348 (4th Cir. 2001)); see Mut. Fed. Sav
& Loan Ass'n, 872 F.2d at 92.
to dismissal under Rule 41(b), the Court must consider four
similar factors: “(1) the plaintiff's degree of
personal responsibility; (2) the amount of prejudice cased
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 of Internal
Review, 916 F.2d 171, 174 (4th Cir. 1990). “[T]he
Court will combine the two tests in determining if dismissal
is appropriate under Rules 37(d) and 41(b)” because the
legal standards for dismissal under both rules are
“‘virtually the same.'” Taylor v.
Fresh Fields Markets, Inc., No. 94-0055-C, 1996 WL
403787, at *2 (W.D. Va. June 27, 1996) (quoting Carter v.
Univ. of W.Va. Sys., 23 F.3d 400, 1994 WL 192031, at *2
(4th Cir. 1994)); see, e.g., Tabor v. E.J.
Patterson, Inc., No. Civ. A. 98-2438, 1999 WL 52144
(E.D. La. Jan. 28, 1999) (analyzing facts under Fed.R.Civ.P.
Rules 37(d) and 41(b) together and dismissing without
prejudice pro se plaintiff's claims where
plaintiff twice failed to appear for his scheduled
deposition). The Court also considers whether the party
facing dismissal or a default judgment is aware of these
possible sanctions. See Green v. Chatillon &
Sons, 188 F.R.D. 422, 424 (M.D. N.C. 1998) (dismissing
case with prejudice and noting that the plaintiff had
“already been explicitly warned that her continued
failure to provide discovery could lead to such a
sanction”); Sadler, 178 F.R.D. at 59-60
(noting that “district courts must precede dismissal
with an ‘explicit and clear' threat to a party that
failure to meet certain conditions could result in dismissal
of the party's case with prejudice”).
with regard to the first factor under both tests, the
plaintiff's bad faith or personal responsibility, Lance
failed to respond to Defendant's discovery requests or to
justify his failure to respond, even after the Court ordered
him to respond by a set date after he missed the deadlines
established by this Court's orders and the Federal Rules
of Civil Procedure. July 6, 2017 Order 1, ECF No. 20.
“Failure to respond to interrogatories can merit
dismissal or default.” Green, 188 F.R.D. at
424 (citing Nat'l Hockey League v. Metro. Hockey
Club, 427 U.S. 639, 643 (1976), and Daye v. Gen.
Motors Corp., 172 F.R.D. 173, 179 (M.D. N.C. 1997)).
Moreover, noncompliance with discovery orders supports a
finding of bad faith. Id. In Green, the
plaintiff demonstrated bad faith when she failed to comply
with a magistrate judge's “order directing her to
respond to [the defendant's] interrogatories and requests
for documents.” Id. Similarly, Mr. Lance has
demonstrated his bad faith by failing to comply with the July
6, 2017 Order, and more broadly by essentially abandoning his
claim in this Court, not only by refusing to provide
requested and ordered discovery, but also providing no
indication that he is prosecuting his own claim.
Plaintiff's conduct in this case demonstrates a
“pattern of indifference and disrespect to the
authority of the court, ” Mut. Fed. Sav & Loan
Ass'n, 872 F.2d at 93, and supports the conclusion
that Plaintiff acted in bad faith.
noted, the second factor is the prejudice caused Defendant,
for which I must consider whether the evidence withheld is
material. Id. Considering that “[t]he purpose
of pre-trial discovery is for a litigating attorney to obtain
information from the opposing party, information which in
many cases is not otherwise available, ”
Middlebrooks v. Sebelius, Civ. No. PJM 04-2792, 2009
WL 2514111, at *3 (D. Md. Aug. 13, 2009), Defendant has
suffered significant prejudice as a result of Plaintiff's
continued refusal to respond to requested and ordered
discovery. The evidence sought by Defendant's initial
discovery request goes to the heart of Plaintiff's claim
and it cannot be disputed that Plaintiff's failure to
answer even a single interrogatory precludes Defendant from
preparing a defense. See Anderson v. Found. for
Advancement, Educ. & Emp't of Am. Indians, 155
F.3d 500, 505 (4th Cir. 1998). Moreover, the purpose of the
damages calculation is to allow the defendant to pursue
discovery that is proportionate to the amount at issue in ...