United States District Court, D. Maryland
L. Hollander, United States District Judge.
Memorandum addresses plaintiff's summary judgment motion
(ECF 16) and defendants' motion to dismiss. ECF 30. No.
hearing is necessary to resolve the motions. Local Rule
Phillip O'Briant, who is self represented, sued
defendants GAF Corporation (“GAF”) and Nidia
Valenzuela, a GAF employee, under 42 U.S.C. § 1981 and
unspecified Maryland employment law. In this case,
plaintiff complains that defendants failed to hire him on the
basis of his race (African American). ECF 1. In particular,
O'Briant alleges that he applied for employment with GAF
on or about January 23, 2016, and again on October 17, 2016,
and although he met the job qualifications, he was not
selected for any position, even though it remained unfilled.
Plaintiff submitted numerous exhibits with his suit.
answered the suit on September 26, 2018. ECF 6. An Amended
Scheduling Order was docketed on October 19, 2018 (ECF 12),
setting a discovery deadline of March 1, 2019. Id.
at 3. In addition, the parties were directed to file a status
report at the close of discovery. Id.
January 10, 2019, plaintiff filed a pre-discovery motion for
summary judgment. ECF 16 (“Summary Judgment
Motion”). The Summary Judgment Motion is not supported
by any exhibits, nor is it submitted under oath. Defendants
filed an opposition (ECF 17), supported by a lengthy exhibit.
on February 27, 2019, defendants filed a pleading titled
“Local Rule 104.7 Certification For Defendants'
Motion To Compel Discovery Responses And Authorizations From
Plaintiff, And Plaintiff's Deposition.” ECF 18
(“Discovery Motion”). The Discovery Motion was
followed by a status report from defendants (ECF 19),
advising the Court that plaintiff failed to appear for his
deposition on February 19, 2019, and otherwise failed to
comply with his discovery obligations. The Court referred the
matter of discovery to U.S. Magistrate Judge J. Mark Coulson
Letter Order of April 4, 2019 (ECF 29), Judge Coulson granted
in part and denied in part defendants' unopposed
Discovery Motion. Judge Coulson determined that
defendants' document request and interrogatories were
relevant to the claims asserted by plaintiff, and reasonable,
with the exception of a request for plaintiff's tax
return. Judge Coulson found that “the record reflects
persistent and reasonable attempts by the Defendants to hold
the deposition [of plaintiff] and an unjustified blanket
refusal by the Plaintiff to do so. Accordingly,
Defendants' Motion as to Plaintiff's deposition is
granted.” In addition, he granted, inter alia,
defendants' request related to plaintiff's employment
records. With respect to plaintiff's conduct, Judge
Coulson explained, id. at 1: “Plaintiff may
not initiate such a suit and then unilaterally refuse to
participate in the discovery process.”
given plaintiff's pro se status, Judge Coulson did not
grant defendant's request for sanctions. But, of import
here, he gave plaintiff 30 days to comply with his Order
subsequently appeared at his deposition on May 1, 2019.
However, he refused to answer any questions. See ECF
30-7 at 4, p. 6-7. Consequently, defendants have moved to
dismiss the case, pursuant to F.R. Civ. P. 41(b). ECF 30. The
motion is supported by a memorandum (ECF 30-1) (collectively,
“Motion to Dismiss”) and several exhibits. Rule
41(b) provides, in part: “If the plaintiff fails to
prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action . . . .”
did not timely respond to the Motion to Dismiss. Therefore,
the Court issued an Order on July 24, 2019 (ECF 32),
directing plaintiff to advise the Court by August 13, 2019,
as to whether he opposed the Motion to Dismiss. In addition,
the Court directed plaintiff to contact defense counsel by
August 9, 2019, to arrange for his deposition.
response, plaintiff filed an opposition on August 5, 2019.
ECF 33. There, plaintiff advised that he opposes the Motion
to Dismiss, and he indicated that he did not engage in
discovery because the Court has not ruled on his pending
Summary Judgment Motion. Id. He also lodged a
variety of criticisms about the judge. For example, he
contends that the judge is “incompetent and unfit to
sit on the bench” and has “engag[ed] in multiple
criminal conspiracies . . . .” Id.
counsel filed a status report on August 12, 2019. ECF 34.
Defense counsel advised the Court that plaintiff failed to
contact defense counsel to schedule his deposition.
Summary Judgment Motion is clearly premature, and flies in
the face of the Amended Scheduling Order. Indeed, the Fourth
Circuit has made clear that, ordinarily, “[r]uling on a
summary judgment motion before discovery ‘forces the
non-moving party into a fencing match without a sword or
mask.'” Putney v. Likin, 656 (4th Cir.
2016) (per curiam) (quoting McCray v. Md. Dep't of
Transp., 741 F.3d 480, 483 (4th Cir. 2014)).
valid court orders have been issued to plaintiff, directing
him to comply with the discovery process. He has flouted
those court orders, under the pretext of that he need ...