United States District Court, D. Maryland
TONYA A. MACKIN
CHARLES SCHWAB & CO., INC.
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.
Charles Schwab & Co. (“Defendant”) filed a
motion for sanctions in this Fair Labor Standards Act
(“FLSA”) case on June 26, 2018. (ECF No. 26).
Plaintiff filed a motion for sanctions pursuant Fed.R.Civ.P.
11 on October 31, 2018. (ECF No. 34). The issues have been
briefed, and the court now rules, no hearing being deemed
necessary. Local Rule 105.6. Because Plaintiff Tonya
Mackin (“Plaintiff”) attempted to comply with
Defendant's discovery requests and the Court's
Orders, dismissal is not the appropriate sanction at this
time. However, due to her failure to comply fully with
Defendant's discovery requests, Plaintiff will be barred
from introducing additional evidence if her case proceeds to
trial and her present motion for sanctions is denied.
court issued a Memorandum Opinion and Order on August 21,
2018, directing Plaintiff to provide full responses to
discovery requests within 14 days and arrange her deposition
within 28 days. (ECF No. 31). Defendant filed a Praecipe on
September 11, 2018, positing that Plaintiff's September
10, 2018 responses to discovery were incomplete and submitted
after the 14-day court-imposed deadline. (ECF No. 32). On
September 11, 2018, Plaintiff filed correspondence in the
court's nighttime drop box explaining that she omitted
weekends and the Labor Day holiday when calculating the
14-day deadline for submitting her discovery responses to
Defendant. Plaintiff's correspondence included a copy of
the updated discovery responses she emailed to Defendant on
September 10, 2018. The email also included a discussion of
Plaintiff's availability and indicated her intent to
schedule a deposition at a time convenient to both parties.
(ECF No. 33). Plaintiff filed a motion for sanctions pursuant
to Fed.R.Civ.P. 11 on October 21, 2018. (ECF No. 34).
Defendant's Motion for Sanctions
seeks to sanction Plaintiff pursuant to Federal Rules of
Civil Procedure 37(b)(2)(A), 37(d), and 41(b). (ECF No. 26,
at 1). Defendant asserts that “Plaintiff's defiance
of the [c]ourt's Orders” and “failure to
produce basic discovery information” demonstrate bad
faith, prejudice Defendant, and warrant dismissal of
Plaintiff's complaint. (Id.). Plaintiff responds
that she “provided [Defendant] with all the information
[she has]” and complied with the Court's Orders to
provide discovery. (ECF No. 33, at 1-3).
37(b)(2)(A) permits a district court to impose certain
punitive measures, up to and including dismissal, on any
party who disobeys a discovery order. Fed.R.Civ.P.
37(b)(2)(A). “Rule 37(b)(2) gives the court a broad
discretion to make whatever disposition is just in the light
of the facts of the particular case.” Charles Alan
Wright, et al., Fed. Prac. & P. § 2289 (3d ed.
2018); see also Camper v. Home Quality Mgmt. Inc.,
200 F.R.D. 516, 518 (D.Md. 2000) (“Federal district
courts possess great discretion to sanction parties for
failure to obey discovery orders.”). But “[w]hile
the imposition of sanctions under Rule 37(b) lies within the
trial court's discretion, it is not a discretion without
bounds or limits.” Hathcock v. Navistar Int'l
Transp. Corp., 53 F.3d 36, 40 (4th Cir. 1995)
(quotation marks and brackets omitted). This is particularly
so when a party requests the severe penalty of dismissal.
Rule 37(d) allows the court to impose certain sanctions on a
party who fails to respond to interrogatories; fails to
respond to a request for inspection; or fails to appear for
properly noticed depositions. Unlike where a party provides
inadequate or incomplete discovery responses, Rule 37(d)
allows for the imposition of sanctions, including dismissal
or entry of default, even when the noncomplying party has not
violated a court order. Charles Alan Wright, et al., Fed.
Prac. & P. § 2291 (3d ed. 2018) (“No court
order is required to bring Rule 37(d) into play. It is enough
that a notice of the taking of a deposition or a set of
interrogatories or a request for inspection has been properly
served on the party.”).
of any sanction under Rule 37 requires consideration of four
factors: “(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.” Belk
v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 348
(4th Cir. 2001).
41(b) likewise grants the court authority to dismiss an
action “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order.” A request
for dismissal under this rule requires analysis of four
similar factors: “(1) the plaintiff's 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). “‘[T]he
[c]ourt will combine the two tests in determining if
dismissal is appropriate under Rules 37 and 41'
because the legal standards for dismissal under both rules
are ‘virtually the same.'” Lance v.
Megabus Ne., LLC, No. PWG-16-3459, 2017 WL 3480800, at
*2 (D.Md. Aug. 14, 2017)(quoting Taylor v. Fresh Fields
Markets, Inc., No. 94-0055-C, 1996 WL 403787, at *2
(W.D.Va. June 27, 1996)).
acted in bad faith by repeatedly failing to comply with the
court's Orders to provide complete discovery responses.
The court's May 22, 2018 Memorandum Opinion provided
Plaintiff with a detailed list of the discovery requests that
remained outstanding at that time, and directed Plaintiff to
“provide full and complete responses to all the
interrogatories and the request for production . . . in a
signed writing under oath.” (ECF No. 24, at 6). In
response, Plaintiff failed to comply with the court's
orders and provided only a meager amount of additional
information that hardly qualified as a full and complete
response to the outstanding discovery requests. However, it
is unlikely that Defendant is substantially prejudiced by
Plaintiff's lack of compliance. While insufficient,
Plaintiff's responses provide Defendant with enough
information to begin building a defense. As for the need to
deter future noncompliance, it is evident that Plaintiff
requires such deterrence based on her continued defiance of
the court's Orders. Lastly, as explained in further
detail below, dismissal is not the only sanction that would
effectively deter Plaintiff's potential future
on the four factors, sanctions are warranted but dismissal is
not the appropriate sanction at this time. The sanction of
dismissal is to be used sparingly, and is usually called upon
in cases where a party is unresponsive or largely absent.
See Mut. Fed. Sav. & Loan Ass'n v. Richards &
Assocs., Inc., 872 F.2d 88, 92 (4th Cir.
1989) (“[O]nly 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, will result in the extreme sanction of dismissal or
judgment by default.”); Roman v. ESB, Inc.,
550 F.2d 1343, 1349 (4th Cir. 1976) (finding
dismissal sanction appropriate where plaintiffs “had
failed to respond to interrogatories; failed to respond to an
order entered by the district court requiring a response to
the interrogatories; and additionally failed to respond upon
specific request after the court had denied, without
prejudice, a first motion to dismiss”); Malry v.
Montgomery Cty. Pub. Sch., No. 11-CV-00361-AW, 2013 WL
812020, at *2 (D.Md. Mar. 3, 2013) (dismissing pro
se plaintiff's employment discrimination complaint
pursuant to Rule 37(d) where he failed to respond to
interrogatories, produce requested documents, or attend a
properly noticed deposition). Given Plaintiff's pro
se status, her correspondence and attachments are
construed as an attempt to satisfy the court's August 21,
2018 Order. Although Plaintiff's discovery
responses remain incomplete, Plaintiff supplemented her prior
discovery responses by providing Defendant with further
information via e-mail on September 10, 2018. (ECF No. 32-1,
at 2). Finally, Plaintiff also provided Defendant with her
availability in an attempt to schedule a deposition
(id.), but Defendant failed to clarify a preferred
deposition date and time in its reply email (ECF No. 32-2, at
2). Because dismissal is reserved for more egregious cases of
noncompliance, it is not a suitable sanction at this time in
light of Plaintiff's attempts to comply. Additionally, as
directed in the foregoing Order, the parties are instructed
to schedule and complete Plaintiff's deposition.
Plaintiff's attempts to comply shield her case from
dismissal, they do not shelter her from the alternative
sanctions permitted under Rule 37(b)(2)(A). Specifically
applicable here is Rule 37(b)(2)(A)(ii), which provides the
court discretion to “prohibit the disobedient party
from supporting or opposing designated claims or defenses, or
from introducing designated matters in evidence.” In
the event that Plaintiff's case proceeds to an
adjudication on the merits, according to Rule
37(b)(2)(A)(ii), Plaintiff will be barred from introducing
evidence that was not already provided to Defendant through
initial disclosures or discovery. This sanction more
appropriately addresses any ...