United States District Court, W.D. Virginia, Lynchburg Division
Marvin L. Meade, Plaintiff,
Turman Group Tye River LLC, Defendant.
K. MOON UNITED STATES DISTRICT JUDGE.
L. Meade (“Plaintiff”), acting pro se,
filed this case on November 20, 2015, pursuant to the Equal
Employment Opportunity Act, 42 U.S.C. Chapter 21, Subchapter
VI, alleging that Turman Group Tye River LLC
(“Defendant”) fired him because he is African
American. Compl. at 4. Defendant filed an initial motion for
sanctions on July 5, 2016 on the basis that Plaintiff had
failed to meaningfully participate in discovery. (Dkt. 33).
Magistrate Judge Robert S. Ballou ruled on that motion on
August 22, 2016, granting leniency and ordering Plaintiff to
respond to interrogatories and requests for production of
documents on or before September 6, 2016. (Dkt. 37).
Defendant then filed this renewed motion for sanctions
seeking dismissal on the grounds that Plaintiff has failed to
comply with Judge Ballou's discovery order. (Dkt. 38).
Plaintiff failed to respond to this motion in writing, but
Defendant requested a hearing, and both parties were heard on
October 5, 2016. (Dkt. 41, 43). Because Plaintiff has
repeatedly violated orders from the Court to participate
discovery and has failed to demonstrate sufficient cause for
such violations, I will grant Plaintiff's motion for
sanctions and dismiss the case with prejudice.
Rule of Civil Procedure 37(b) permits the Court to impose
sanctions for a failure to “obey an order to provide or
permit discovery.” See Fed. R. Civ. P.
37(b)(2)(A). More specifically, Rule 37(b) authorizes the
Court to preclude evidence or dismiss the case with prejudice
where a party has failed to comply with discovery
orders. Fed.R.Civ.P. 37(b)(2)(A). Courts are given
broad discretion to select an appropriate sanction under Rule
37(b) for a party's failure to comply with discovery
orders. Rabb v. Amatex Corp., 769 F.2d 996, 999 (4th
Supreme Court has held that sanctions may be used to
“penalize those whose conduct may be deemed to warrant
such a sanction, ” but sanctions can also be used
“to deter those who might be tempted to such conduct in
the absence of such a deterrent.” Nat'l Hockey
League v. Metropolitan Hockey Club, Inc., 427 U.S. 639,
643 (1976). The Fourth Circuit has made clear that district
courts “must have the authority to control litigation
before them, and this authority includes the power to order
dismissal of an action for failure to comply with court
orders.” Ballard v. Carlson, 882 F.2d 93, 95
(4th Cir. 1989).
Fourth Circuit has established four factors that a district
court must consider in determining whether dismissal is
appropriate under Rule 37(b): “(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.” Anderson v. Found. for Advancement,
Educ. & Employment of Am. Indians, 155 F.3d 500, 504
(4th Cir. 1998).
has acted in bad faith, which satisfies the first
Anderson factor. In the Fourth Circuit, bad faith
includes willful conduct, where the plaintiff “clearly
should have understood his duty to the court, ” but
nonetheless “deliberately disregarded” it.
Rabb, 736 F.2d at 1000. Plaintiff has been
repeatedly told about required discovery disclosures and has
failed to respond, even asserting that he “had not and
did not want to respond” to such requests. (Dkt. 33 at
2). The Court proceeds with caution before finding that a
pro se litigant acted in bad faith. However,
Plaintiff here failed to cooperate despite Judge Ballou
explaining Plaintiff's duty to participate in discovery.
Id. at 4. Plaintiff's actions demonstrate bad
faith sufficient to satisfy the first Anderson
Plaintiff's failure to cooperate in discovery has
severely impaired Defendant's ability to prepare for
trial. Dismissal is justified where a plaintiff's
“repeated refusals to comply with [the defendant's]
legitimate discovery requests, despite court orders to the
contrary. . . [are] prejudicial to the [defendant] . . .
because it could not defend against claims, facts, and
witnesses that [the plaintiff] refused to provide . . .
.” United States v. One Tract of Real Prop.,
No. 95-1282, 1997 WL 71719, at *3 (4th Cir. 1997).
Plaintiff's only discovery participation has been giving
a deposition and providing tax returns. Id. at 5.
Plaintiff has failed to respond to interrogatories or provide
a list of people with knowledge of the facts alleged in the
complaint. Id. Such noncompliance has considerably
prejudiced Defendant's ability to prepare a defense at
trial, which is now only one week away.
the need to deter such behavior is compelling in this case.
Although Plaintiff is pro se, he has disregarded and
defied orders of this Court. He has been given exceptional
leniency by Judge Ballou; both the Court and Defendant have
been exceedingly patient with him. (Dkt. 37). Judge Ballou
even warned Plaintiff after the first motion for sanctions
that continued noncompliance may result in dismissal. (Dkt.
33 at 4). Granting dismissal in this case demonstrates that
although pro se litigants are given leniency, they
cannot flaunt the Court's orders to participate in
and finally, lesser sanctions would not be appropriate or
effective in this case. Judge Ballou already granted a lesser
sanction to Plaintiff when the first motion for sanctions was
filed. Plaintiff was given an additional chance to comply
with the discovery orders. (Dkt. 37). Plaintiff failed to
take advantage of that leniency, so there is no reason to
believe that granting leniency a second time would produce a
different result. As stated above, trial is currently only
one week away, and Defendant has received no discovery from
Plaintiff besides a deposition and a few tax returns. The
only reasonable alternative to dismissal with prejudice would
have been to severely curtail the evidence that Plaintiff is
permitted to admit at trial to that which he has provided to
Defendant. (Dkt. 42). Considering how little discovery has
taken place in this case, such a ruling would likely make the
trial a hollow endeavor. For that reason, dismissal with
prejudice is the only meaningful sanction available at this
satisfied all four Anderson factors, Defendant is
entitled to dismissal with prejudice as a sanction for
Plaintiffs repeated failure to comply with Defendant's