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 to dismiss or, in the alternative, to compel
attendance at deposition and impose sanctions in this Fair
Labor Standards Act (“FLSA”) case on February 2,
2019. (ECF No. 38). The issues have been briefed, and the
court now rules, no hearing being deemed necessary. Local
Rule 105.6. For the following reasons, Defendant's motion
to dismiss will be granted and Plaintiff's complaint will
court issued a Memorandum Opinion and Order on August 21,
2018, directing Plaintiff to arrange her deposition within 28
days. (ECF No. 31). Plaintiff emailed Defendant on September
10, 2018 indicating her dates of availability and intent to
schedule a deposition at a time convenient to both parties.
(ECF No. 33). After Defendant failed to respond to
Plaintiff's email and both parties requested sanctions,
the court issued another memorandum opinion and order on
January 8, 2019 directing the parties to schedule
Plaintiff's deposition within twenty-eight (28) calendar
days. (ECF Nos. 36 & 37).
emailed Plaintiff a notice of deposition on January 15, 2019
and told Plaintiff the deposition would take place on
February 5, 2019. (ECF No. 38-3, at 6). Plaintiff responded
via email four days later, on January 19, 2019, stating that
she was unavailable on February 5, 2019. (Id.).
Defendant responded to Plaintiff on the same day, suggesting
that the deposition take place on February 19 or 20, 2019,
and asking Plaintiff to confirm her availability on those
days. (Id., at 5). Plaintiff responded to Defendant
on the same date stating that she would “get back to
[Defendant] with a date and time” that she was
available. (Id.). Defendant responded to Plaintiff
on January 21, 2019, asking Plaintiff to “provide a
number of available dates and please do so promptly.”
(Id.). Defendant again inquired about
Plaintiff's availability via email on January 23, 2019.
(Id., at 4). Once more, Defendant emailed Plaintiff
on January 30, 2019, noting Plaintiff's lack of response
and stating its intent to seek the court's assistance
because it believed Plaintiff was refusing to appear.
(Id., at 3). Plaintiff responded to Defendant on the
same date, stating that she would have to provide her dates
of availability at an unspecified point in the future because
she had “appointments and other commitments already
scheduled and . . . had unexpected changes come up as
well.” (Id.). Defendant responded to Plaintiff
on the same date, stating that, due to the court's
January 8, 2019 order, the deposition must take place
“within a particular time period.” (Id.,
at 2). In this email and a follow-up email dated February 1,
2019, Defendant signaled its intent to seek the court's
assistance because Plaintiff would not provide Defendant with
her dates of availability. (Id.).
seeks to sanction Plaintiff pursuant to Federal Rules of
Civil Procedure 37(b)(2)(A)(v) and 41(b) and Local Rule
105(8). (ECF No. 38, at 1). Defendant asserts that
“Plaintiff's continued defiance now warrants the
sanction of dismissal” because it is
“substantially prejudiced if Plaintiff will not appear
for a deposition.” (Id., at 3). Plaintiff has
not responded to Defendant's motion.
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. “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.
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)).
indicated an intent to comply with the court's January 8,
2019 order by stating in an email to Defendant that she would
“get back to [Defendant] with a date and time” of
availability. (ECF No. 38-3, at 5). However, Plaintiff failed
actually to provide Defendant with a single date of
availability. Although Plaintiff indicated in a later email
to Defendant that “the staffing situation at [her]
place of employment” may prohibit her from taking time
off to attend a deposition, she failed to provide Defendant
with any indication of when the circumstances constraining
her availability may change or reach out to the court to
request an extension of the deadline to complete her
deposition. (Id., at 3). Due to Plaintiff's
silence and limited communication, Defendant was unable to
schedule or conduct Plaintiff's deposition. Thus,
Plaintiff acted in bad faith by failing to comply with the
court's order to schedule her deposition by February 5,
also likely that Defendant is prejudiced by Plaintiff's
lack of compliance. The parties previously engaged in a
lengthy discovery battle over Plaintiff's lack of
responses and minimal responses to Defendant's request
for production of documents and interrogatories.
(See ECF No. 28). Plaintiff's inadequate
responses to Defendant's interrogatories and requests for
production of documents, combined with Plaintiff's recent
refusal to schedule a deposition, have prevented Defendant
from learning about Plaintiff's case theory or the
witnesses and experts she plans to call at trial. As a
result, Defendant has been unable to evaluate the merits of
Plaintiff's claim and prepare its defense. See Rogler
v. Phillips Bldg. Mental Retardation Program, 126 F.R.D.
509, 514 (D.Md. 1989), aff'd, 898 F.2d 147
(4th Cir. 1990) (“[T]he nature of the
noncompliance by plaintiff, and the effect upon
defendants' ability to defend in this case in the absence
of the discovery from plaintiff . . . and in the face of
plaintiff's refusal to specify certain of her claims,
make it necessary, in fairness to defendants, that this Court
at this time grant their motion to dismiss[.]”)
(internal quotations omitted).
the need to deter future noncompliance, it is evident that
Plaintiff requires such deterrence based on her continued
defiance of the court's orders.
dismissal is the only sanction that would effectively deter
Plaintiff's potential future noncompliance. Although the
sanction of dismissal is to be used sparingly, it is
appropriate here because Plaintiff's continued
noncompliance “represents bad faith and callous
disregard for the authority of the district court and the
Rules.” Mut. Fed. Sav. & Loan Ass'n v.
Richards & Assocs., Inc., 872 F.2d 88, 92
(4th Cir. 1989). “Pro se litigants are
entitled to some deference from courts[, ] [b]ut they as well
as other litigants are subject to the time requirements ...