United States District Court, E.D. Virginia, Alexandria Division
ANGELA C. RAYMOND, Plaintiff,
RATNER COMPANIES, L.C., et al., INC., Defendants.
REPORT AND RECOMMENDATION
THERESA CARROLL BUCHANAN UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on its Order dated February 22,
2017 in which Defendants' Motion for Sanctions was
granted. (Dkt. 33.) Upon consideration of the pleadings, the
undersigned makes the following recommendation for dismissal
pursuant to 28 U.S.C. §636(b)(1)(B).
Plaintiff filed a Complaint, through counsel, in this action
on April 7, 2016, alleging "violations of Title VII of
the Civil Rights Act of 1964, codified at 42 U.S.C. U.S.C.
2000e et seq., and the Americans with Disabilities Act
("ADA"), codified at 42 U.S.C. 12111 et seq.
because Defendant discriminated against her on the basis of
her race and her disability in the terms of her
employment" against defendants Ratner Companies, L.C.,
Creative Hairdressers, Inc., d/b/a Hair Cuttery, and Bubbles,
Inc. (Dkt. 1.)
September 22, 2016, plaintiff's counsel requested leave
to withdraw as counsel citing "a difference of opinion
as to the best methods to utilize in proceeding" with
the action which could not be resolved. (Dkt. 7.) Over six
weeks later, plaintiff s counsel filed a Supplement to Motion
to Withdraw as Counsel in which counsel stated she
communicated with plaintiff by phone call and plaintiff made
"her first affirmative opposition to counsel's
withdrawal" from the matter. (Dkt. 11.) Plaintiff also
expressed to counsel that she would send a letter to the
Court. (Id.) The Court did not receive
correspondence from plaintiff and, subsequently, granted the
Motion to Withdraw as Attorney on November 14, 2016. (Dkt.
December 21, 2016, plaintiff did not appear for the Initial
Pretrial Conference. (Dkt. 16.) The next day, the Court
ordered plaintiff to appear before the Court on January 13,
2017, to show cause why she should not be held in contempt of
the Court and her case be dismissed. (Dkt. 17.)
status conference was held on January 13, 2017 and the show
cause hearing was reset for January 27, 2017. (Dkt. 19.)
Plaintiff did not appear at the January 13, 2017 hearing.
(Id.) Defendants then filed a Motion to Compel
Discovery prior to the January 27, 2017 hearing stating that
plaintiff failed to respond to the written discovery served
in the case. (Dkts. 21, 22.) Plaintiff was not present at the
January 27, 2017 hearing and the Court granted
defendants' Motion to Compel Discovery. (Dkt. 26.) The
Court's order warned plaintiff that failure to adequately
respond to defendants' discovery requests by February 3,
2017, may result in sanctions, including dismissal of the
February 10, 2017, defendants filed a Motion for Sanctions
requesting defendants' attorneys' fees and costs due
to plaintiff's failure to comply with the Court's
order dated January 27, 2017. (Dkt. 27.) Defendants also
filed a Petition for Attorney's Fees and Costs for fees
incurred related to their Motion to Compel Discovery. (Dkt.
30.) A hearing on the Motion for Sanctions was held on
February 17, 2017. (Dkt. 31.) Plaintiff was again not present
and the Court granted defendants' motion for sanctions.
to Federal Rule of Civil Procedure 37(b)(2)(A)(v) if a party
fails to obey an order to provide or permit discovery, the
Court where the action is pending may dismiss the action in
whole. Fed. R. Civ. P 37(b)(2)(A)(v). Federal Rule of Civil
Procedure 37(b)(2)(C) provides that in addition to dismissal,
"the court must order the disobedient party, the
attorney advising that party, or both to pay the reasonable
expenses, including attorney's fees, caused by the
failure, unless the failure was substantially justified or
other circumstances make an award of expenses unjust."
Fed. R. Civ. P 37(b) (2) (C).
Fourth Circuit has developed a four-part test for a district
court to use when determining what sanctions to impose under
Rule 37, requiring that the court "determine (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); Cooper v. Fedex Ground Package Sys.,
Inc., No. 1:16CV547(JCC/TCB), 2017 WL 586874, 8 (E.D.
Va. Feb. 14, 2017).
plaintiff in this case has been given many chances to conform
to the Federal Rules of Civil Procedure, but instead has
failed to comply with discovery requests and, in addition,
has never appeared at hearings before the Court, including
her failure to appear pursuant to the Court's order
directing her to show cause on January 27, 2017. Although it
is unclear whether plaintiff acted in bad faith, the
prejudice to defendants is clear since plaintiff failed to
produce or respond to discovery requests. Additionally, there
is a need to deter this complete non-compliance with the
Court's orders and less drastic sanctions by the Court
have been found ineffective.
seek attorneys' fees and costs in relation to their
Motion to Compel, Motion for Sanctions, and their overall