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Diamond v. Mohawk Industries, Inc.

United States District Court, W.D. Virginia, Lynchburg Division

April 10, 2014



NORMAN K. MOON, District Judge.

This matter is before the Court on Defendant Mohawk Industries' Motion to Dismiss and for Sanctions ("Motion to Dismiss") (docket no. 32). Mohawk Industries ("Defendant" or "Mohawk") moves this Court to dismiss Plaintiff Phillip Brent Diamond's amended complaint (docket no. 8), with prejudice, under Federal Rules of Civil Procedure 37(b) and 41(b) because Phillip Brent Diamond ("Plaintiff" or "Diamond") has failed to prosecute his case and has failed to comply with a discovery order. Mohawk also requests that this Court award it the costs and reasonable attorney's fees it incurred in attempting to take Diamond's deposition, for which he twice failed to appear. For the reasons that follow, I will grant Mohawk's motion in part, and deny it in part, and will dismiss this case with prejudice.


On October 11, 2012, Diamond filed his complaint, pro se and in forma pauperis, under Title VII of the Equal Employment Opportunities Act, 42 U.S.C. § 2000e et seq, [1] claiming Mohawk refused to hire him at its Glasgow, Virginia plant because of his race. On October 19, 2012, I dismissed Diamond's complaint under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief could be granted. On October 29, 2012, Diamond filed what I construed to be a motion to amend or correct his complaint, asking the Court to allow him to allege facts this Court had found wanting in his first complaint, including some he had meant to include with his original complaint. On October 31, 2012, I found good cause to allow Diamond to amend his complaint and granted his motion to amend, reinstating his case. Diamond filed an amended complaint on October 31, 2012, attaching a "bill of particulars" with additional information.

In his amended complaint (docket no. 8), Diamond claims he faced discrimination at the job application stage. He alleges that he submitted several applications to work for Mohawk Industries, which has a branch where Diamond resides in Glasgow, VA. See Am. Compl. 3. Plaintiff alleges that the human resources department there "either lost, tampered with or just shoved [his applications] to the back of the pile." Id. Diamond states that an employee in Mohawk's human resources department "lied continually about the hiring [process] and was very rude and disrespectful." Id. Further, Diamond alleges that the same employee "told [him] on one occasion that [Defendant] only hires a select group of people." Id. Diamond seeks damages for "2 ½ years of little or no work, " as well as for "emotional stress." Id. at 5. In his bill of particulars attached to the amended complaint, Diamond restates some of the same information from his original complaint and poses questions to Mohawk about its hiring practices, specifically practices related to hiring African Americans and rehiring applicants who had quit or been fired in the past. See Am. Comp. 9-10.

After Diamond filed his amended complaint, he struggled to properly serve Mohawk. Eventually, service was accomplished and Mohawk filed an answer to Diamond's amended complaint on August 8, 2013. In August 2013, the Clerk of this Court spoke with Diamond in scheduling the April 14, 2014 court trial in this case. That same month, Diamond and Mohawk attempted to begin the discovery process, but only exchanged initial disclosures because of the difficulty of contacting Diamond. Mohawk requested that Diamond contact Mohawk to schedule a Rule 26(f) planning conference on August 19, 2013, and served its initial disclosures on Diamond on September 11, 2013, again requesting contact for the scheduling conference. See Def.'s Mot. to Compel ¶¶ 3-6. On September 26, 2013, Mohawk served its written discovery on Diamond asked Diamond to provide dates on which he could be deposed. Id. at ¶ 7. In the meantime, Mohawk sent correspondence to two different addresses associated with Diamond and attempted to contact Diamond by telephone.

Mohawk heard nothing until September 26, 2013, when it received an email from "William Dock, Jr." at, with Diamond's disclosures attached to the email. Id. at ¶ 8. Mohawk attempted to confirm this was a good email address at which to contact Diamond on October 11, 2013, and forwarded the September 26, 2013 letter and written discovery to that email. Id. at ¶ 9. Discovery proceeded without any direct contact with Diamond. On October 14, 2013, Diamond left a voice mail with Mohawk's counsel giving a phone number at which to reach Diamond, but Diamond did not answer Mohawk's call later that week, nor indicate he had received Mohawk's voice mail. Id. at ¶¶ 10-11. On November 12, 2013, Mohawk received Diamond's responses to Mohawk's first set of interrogatories, along with Diamond's written discovery. Id. at ¶ 12. The return address on those documents was listed as "432 Pocahontas Street, Glasgow, Virginia 24555." Id. at ¶ 12. Mohawk had attempted to send letters and discovery to this address, and it was (and remains) the address for Diamond listed on file with this Court.

Diamond's response to Mohawk's first set of interrogatories in November 2013 was the last time anyone has heard directly from Mr. Diamond.[2] Diamond failed to respond to: (1) Mohawk's first request for production of documents; (2) Mohawk's discovery responses and November 27, 2013 request for convenient deposition dates, proposing two dates for the deposition and warning Diamond that Mohawk would select one if he did not respond; (3) a notice of deposition sent by mail and email on December 16, 2013, scheduling the deposition for January 7, 2014 in Lexington, Virginia; and (4) a January 2, 2014 email to confirm the January 7, 2014; deposition. Def.'s Mot. to Compel ¶¶ 13-19.

On January 7, 2014, Mohawk's counsel waited at the designated location for Diamond and called him on the phone number he had provided, with no success. Id. at ¶ 20-21. Mohawk accordingly filed a Motion to Compel (docket no. 30) with this Court on January 14, 2014, asking the Court to compel Diamond's presence at a deposition and asking for an extension of deadlines. Magistrate Judge Robert S. Ballou granted the Motion to Compel on January 21, 2014, ordering Diamond to respond to the first request for production of documents within 14 days and allowing Mohawk to schedule a deposition within 21 days, for which it could subpoena Diamond under Rule 45. Order on Mot. to Compel (docket no. 31). The order warned Diamond that he had "an obligation to engage in discovery" and that "[a]lthough pro se litigants are given some leeway by courts, they are not immune from sanctions under the Federal Rules of Civil Procedure, including dismissal for failure to obey court orders." Id.

Mohawk scheduled Diamond's deposition for February 4, 2014, in the same location, and mailed notice to the two different addresses on file on January 22, 2014. Def.'s Mot. to Dismiss ¶ 5. In accordance with Judge Ballou's order, Mohawk also served a Rule 45 subpoena on Diamond by mail, commanding his appearance. See Def.'s Mot. to Dismiss, Ex. 1. Mohawk again waited for Diamond on February 4, 2014, at the designated location. Diamond did not appear or contact Mohawk about his absence. Id. at ¶¶ 6-7.

On February 7, 2014, Mohawk filed its Motion to Dismiss, requesting that this Court dismiss Diamond's claims under Rules 37(b) and 41(b) of the Federal Rules of Civil Procedure, for failure to prosecute and for failure to comply with a discovery order. On March 19, 2014, this Court issued Diamond a notice under Roseboro v. Garrison, 528 F.3d 309 (4th Cir.1975), giving him twenty-one days to respond to Mohawk's Motion to Dismiss and informing Mr. Diamond that if he did not respond, the Court might dismiss his case for failure to prosecute. See Roseboro Notice (docket no. 33). The Court mailed this notice on March 19, 2014, to 432 Pocahontas Street, Glasgow, Virginia, 24555, the address it has on file for Mr. Diamond. Diamond had until April 9, 2014, to respond.

After reviewing the pleadings and other filings, I find it appropriate to dispense with oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Local Rule 11(b). Fed.R.Civ.P. 78(b); W.D. Va. Civ. R. 11(b).


A pro se litigant's pleadings are to be liberally construed, and courts may grant pro se litigants some leeway for mistakes they may inadvertently make in prosecuting their cases. See generally Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, as Judge Ballou and this Court have warned Mr. Diamond, pro se litigants must respond to discovery requests ...

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