Opinion
7:20-cv-03662-JD-JDA
12-03-2021
Elise Ashby (Arrington), Plaintiff, v. Arthur Cooksey, AFC3 Holdings, LLC, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on a motion to compel discovery by Plaintiff, a motion for summary judgment or mediation by Plaintiff, and a motion for contempt and sanctions by Defendants. [Docs. 105; 107; 117.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review all matters in pro se cases and to submit findings and recommendations to the District Court.
Although Defendants styled their motion as a motion to hold Plaintiff in contempt of court, the undersigned magistrate judge does not have the authority to hold a party in civil contempt in a case such as the present one, where the case is not a misdemeanor case and the magistrate judge is not presiding with the parties' consent under 28 U.S.C. § 636(c). 28 U.S.C. § 636(e). Rather, the undersigned can only certify factual findings and refer the issue to the presiding district court judge, who can decide whether to enter a civil contempt order. Id.; Proctor v. State Gov't of N.C. , 830 F.2d 514, 521 (4th Cir. 1987). Thus, the undersigned construes Plaintiff's motion as a motion to certify to the district court facts supporting holding Plaintiff in civil contempt. See Hanwha Azdel, Inc. v. C&D Zodiac, Inc., No. 6:12-cv-00023, 2013 WL 12314518, at 1 n.1 (W.D. Va. Nov. 14, 2013).
BACKGROUND
Plaintiff filed this action pro se in the Union County Court of Common Pleas alleging defamation against Defendants, and Defendants removed it to this Court on October 19, 2020, on the basis of diversity jurisdiction. [Docs. 1; 1-1.] Plaintiff subsequently filed an Amended Complaint and a Second Amended Complaint. [Docs. 19; 23.]
On October 12, 2021, Plaintiff filed a motion to compel Defendants' discovery responses for interrogatories. [Doc. 105.] On October 26, 2021, Defendants filed a response opposing Plaintiff's motion [Doc. 112], and Plaintiff filed a reply on November 9, 2021 [Doc. 115].
On October 22, 2021, Defendants filed a motion to hold Plaintiff in contempt of court and impose sanctions (“Defendants' sanctions motion”) [Doc. 107], and a motion to stay this case until the Court ruled on Defendants' sanctions motion [Doc. 108]. Plaintiff filed responses opposing these motions on November 3, 2021, and December 1, 2021 [Docs. 114; 127], and Defendants filed a reply and an amended reply on November 10 and 15, 2021 [Docs. 116; 118].
On November 10, 2021, Plaintiff also filed a motion for summary judgment or mediation. [Doc. 117.]
On November 22, 2021, this Court issued an Order granting Defendants' motion to stay, ordering that all deadlines in this case be stayed, including Defendants' deadline for responding to Plaintiff's summary judgment motion, pending the Court's ruling on Defendants' sanctions motion. [Doc. 125.]
BACKGROUND
Plaintiff alleges that AFC3 was an owner of a building in which she was renting space and that Cooksey was a member of AFC3. [Doc. 23 ¶¶ 2, 16, 17.] Plaintiff claims that AFC3, Arthur Cooksey, and another man “presented false information about the Plaintiff at [an] eviction hearing on March 6, 2019” and that “Defendants sent defamatory emails to the City of Union's Public Safety Officers, to the Union County Council Supervisor, the Executive Directors of both Tourism and the Chamber of Commerce” and “between members of AFC3 Holdings” accusing Plaintiff of various actions, including, inter alia, embezzlement, vandalism, extortion, fraud, and usury. [Id. ¶¶ 5-7, 17, 20, 22-30.] Plaintiff alleges that Cooksey took these actions as “an agent” and that he acted willfully and intentionally with deliberate malice. [Id. ¶ 22.]
As relief, Plaintiff requests money damages and court costs as well as a court order requiring Defendants to cease and desist the complained-of negative allegations and to apologize publicly to Plaintiff. [Id. at 7-8.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe her pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is still subject to summary dismissal. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for her. See Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
DISCUSSION
Defendants' Sanctions Motion
The Court will begin by addressing Defendants' sanctions motion. Defendants argue that, due to Plaintiff's failure to comply with this Court's Order compelling her participation in discovery, Defendants are entitled under Rule 37 to have Plaintiff held in contempt and her action dismissed, and they alternatively argue that they are entitled to dismissal of Plaintiff's action under Rule 41. [Doc. 107.]
Facts Relating to the Sanctions Motion
Defendants' First Requests for Production and First Set of Interrogatories were served on Plaintiff by United States Mail on May 6, 2021. [Docs. 80-1 at 7; 80-2 at 8.] The Court granted an extension of Plaintiff's response deadline to July 1, 2021. [Doc. 74.] Defendants received responses from Plaintiff dated June 30, 2021, along with a privilege log. [Docs. 80-3-80-5.] Plaintiff claimed privilege over her personal federal and state tax returns, listing the category of privilege as “Plaintiff's personal tax returns.” [Docs. 80-4 at 3; 80-5 at 2.] She also claimed privilege over the following six categories: (1) the federal and state tax returns of Open Air Celebrations, LLC (Plaintiff's company), (2) the federal and state tax returns of RobinHood Group (Plaintiff's non-profit organization), (3) the financial statements for Open Air Celebrations, LLC and RobinHood Group, (4) the corporate records of Open Air Celebrations, LLC, (5) Plaintiff's resume or CV, and (6) documents related to the grant that Plaintiff claims she lost due to Defendants' alleged conduct. [Docs. 80-4 at 3-5; 80-5 at 2.] For each of these, Plaintiff listed the category of privilege as “Plaintiff Work Product.” [Doc. 80-5 at 2.]
Four of Plaintiff's other responses to requests for production are relevant here. Request for Production 1 asked for “[y]our file regarding this matter, ” and Request for Production 3 requested “[a]ny and all documents maintained or possessed by Plaintiff or anyone acting on her behalf relating to the claims set forth in the Complaint, Answer, or defenses thereto.” [Doc. 80-4 at 2.] Plaintiff responded to each of these two requests by stating, “Documents are on PACER.” [Id.] Request for Production 9 sought “[a]ny and all documents or tangible items that evidence any damages claimed in this case.” [Id. at 3.] Plaintiff responded that “[n]one exist.” [Id. at 2-3.] And Request for Production 10 asked for “[a]ll documents received by Plaintiff from a third party in response to a request under the Freedom of Information Act and/or a subpoena or issued in this action.” [Id. at 3.] Plaintiff responded, “FOIA documents #10.” [Id.]
Plaintiff also refused to answer the following interrogatories, as is relevant here:
• Interrogatory 13: Identify all businesses or other entities or nonprofits which you are affiliated or own, entirely or in part (including your percentages of ownership) at the time (a) you learned of the alleged defamatory statements and (b) presently. If you are only affiliated with an entity (e.g. nonprofit), please identify how you are affiliated (e.g. CEO, member, etc.) with the entity.
• Interrogatory 21: State whether or not Plaintiff has been a party, either plaintiff or defendant, in a lawsuit within the past ten (10) years and provide the case caption, case number, and jurisdiction for same.
• Interrogatory 22: Identify any and all grants or other sources of funding that you, or any entity in which you are affiliated, receive or have received for the past five years. For each grant or source of funding, identify the entity providing the funds, the amount of funds received, the amount of funds that were supposed to be provided, the year in which the funds were received, and which entity received the funds.[Doc. 80-3 at 5-7.] With regard to each of these, Plaintiff answered, “The nature of the defamation makes it less than prudent to provide this information.” [Id.]
Defendants' counsel contacted Plaintiff via letter dated July 15, 2021, asserting that Plaintiff's responses were insufficient. [Doc. 80-6.] Counsel explained that there is no privilege for one's personal tax returns and that Plaintiff had offered no support for the proposition that she was entitled to work-product privilege or any other privilege regarding the other documents. [Id. at 2-3.] She added that Plaintiff had no valid justification for refusing to answer interrogatories on the basis that Plaintiff did not deem it prudent to do so. [Id. at 3.] Counsel also argued that Plaintiff had no valid basis for refusing to produce appropriate documents responding to Requests for Production 1, 3, and 9, among others. [Id. at 3-4.]
In response to counsel's letter, Plaintiff sent an email on July 23, 2021, stating that she would provide her discovery responses “by the end of the month.” [Doc. 81-1 at 1.]
Responding by email the same day, counsel for Defendants stated:
As I mentioned in my letter, we have a discovery/motion to compel deadline of July 27, 2021. We can extend this deadline if we both agree (in writing) to work in good faith in an effort to resolve the dispute (Local Rule 37.01). If you are going to fully answer our requests and produce all documents that we ask for, I can agree we are working in good faith and extend your deadline until August 1, 2021. But if you are still going to maintain any objection to any of our discovery requests, I need to go ahead and file the motion to compel pursuant to the court rules. So I see two options:
1. You will fully respond to our discovery request and produce documents by August 1, 2021. I will agree that we are mutually working to resolve this discovery dispute, including the email I just sent you about a full response to your FOIA requests. You will need to confirm in writing that
you are working in good faith to resolve the discovery dispute.
2. If you are going to maintain any objection and not fully respond or continue to withhold any documents, the court rules require me to go ahead and file my motion to compel on July 27, 2021.
Please let me know how you wish to proceed.[Id. at 2.]
When Defendants received no further response to their discovery requests, they filed a motion to compel on July 27, 2021, seeking production of the identified documents and answers to the identified interrogatories. [Doc. 80.]
In Plaintiff's response to Defendants' motion to compel, which she styled as a motion to dismiss the motion to compel and filed on August 3, 2021, Plaintiff did not advance any specific argument supporting her right to refuse any of Plaintiff's discovery requests. [Doc. 81.] Rather, she stated that she had “had every intention of submitting the requested documents to defendant by the end of the month of July.” [Id. at 2.] However, on August 12, 2021, Plaintiff filed a motion for privilege and protective order, requesting privilege for the seven types of documents she had previously refused to produce on the basis of privilege. [Doc. 90 at 1.] Plaintiff asserted in that motion that “[t]o provide the defendants with any personal or professional information would open the plaintiff to additional defamation and harm to professional standing in the local community and with funders.” [Id.]
In an Order issued September 22, 2021, the Court granted Defendants' motion to compel and denied Plaintiff's motion to dismiss Defendants' motion to compel, stating as follows:
Upon review, the Court finds that Plaintiff's claims of privilege are without basis and that Plaintiff[']s refusal to produce requested discovery because it would not be considered prudent to do so is an improper objection that contravenes the rules governing discovery. While pro se litigants may be granted some flexibility from strict application of the Rules of Civil Procedure or other court rules, they may not simply fail to engage in discovery with the opposing party. Plaintiff chose to bring this case and therefore must participate in the litigation process, including discovery. Accordingly, Plaintiff is hereby ORDERED to produce full and complete responses to Defendants' discovery requests within twenty (20) days of this Order. She is further warned that her failure to fully comply with this Order may result in the Court imposing sanctions under Rule 37(b)(2) of the Federal Rules of Civil Procedure and/or recommending dismissal of this action pursuant to Rule 41.[Doc. 101.]
The Court also granted in part and denied in part Plaintiff's motion for privilege and protective order, stating:
Plaintiff appears to be requesting that the Court find a certain category of documents to be privileged under Rule 26(b)(5). Those documents include, for example, tax returns for her personally and for Open Air Celebrations, LLC, as well as financial statements and grant award documents. Plaintiff has failed, however, to provide a sufficient basis for finding these documents privileged. Additionally, the Court is unaware of any circumstances under which these documents would be considered privileged. Thus, the Court denies Plaintiff[']s request. To the extent Plaintiff seeks entry of a protective order to protect such documents in discovery, her motion is granted. Accordingly, the parties are directed to confer regarding the entry of a confidentiality order covering Plaintiff's production of the documents outlined in this motion.[Doc. 103.]
Following issuance of these Orders, on October 5, 2021, Plaintiff emailed defense counsel an updated privilege log and a resume, along with additional responsive documents. [Doc. 107-1.] Plaintiff took the position in that mailing that she would not produce the remainder of the documents that the Court ordered her to produce because they were being audited. [Id. at 3, 5.] She represented that she would provide the requested documents once the audits were complete. [Id. at 3.]
The Parties' Arguments
On October 22, 2021, Defendants filed their sanctions motion. [Doc. 107.] In support of their motion, Defendants emphasize that Plaintiff has never previously argued that the documents she claimed were privileged were under audit, and they argue that, in any event, no such audit would be a basis for any privilege against discovery. [Id. at 1, 4, 9.] Defendants further note that Plaintiff still has not answered the interrogatories the Court ordered her to answer. [Id. at 4-5, 9.] And Defendants point out that Plaintiff has not served Defendants with a supplemental response to the requests for production. [Id. at 5, 10.] Defendants maintain that although Plaintiff served Defendants with additional documents that arguably could apply to Requests for Production 3 and/or 9, she has not identified which requests the documents are responsive to, and, other than the resume, she did not produce the documents that she claims are privileged. [Id. at 2, 5, 10.] Defendants add that Plaintiff has engaged in meritless and wasteful motions practice in filing her motion to compel cease and desist order [Doc. 82] and her motion for privilege and protective order [Doc. 90]. [Doc. 107 at 6.] Defendants contend that “Plaintiff should be held in contempt and sanctioned by (1) dismissal of this case for Plaintiff's failure to respond to discovery and to follow this Court's Order and (2) an award of attorney's fee to Defendants for their efforts in responding to Plaintiff's dilatory approach to this case.” [Id.; see Id. at 6-13.]
In her response opposing Defendants' sanctions motion, Plaintiff argues, for the first time, that, regardless of any privilege, she cannot produce the remaining documents for which she claimed privilege because she gave to the government-first the South Carolina Secretary of State and then the local IRS and United States Department of Agriculture (“USDA”)-her only copies of the documents concerning the audits she references. [Doc. 114 at 1, 4, 7.] She represents that the “documents were hand-delivered because the amount of information requested was too large to be scanned and sen[t] via email”; that “[t]here were six years of reports, tax returns, receipts, bank records, credit card statements, [and] program reports for several programs”; that “[t]he S.C. Secretary of State took three months to copy all the documents”; and that “Plaintiff can provide the documents as soon as they are returned.” [Id. at 1.] Plaintiff argues that it is not her, but Defendants, who are refusing to produce discovery and to litigate in good faith. [Id. at 3-7.] She also argues that Defendants already possess many of the documents they have requested, including RobinHood Group's tax returns, financial reports for Open Air Celebrations, and Plaintiff's personal tax returns. [Id. at 5-6.]
Plaintiff attached to her response a letter dated June 24, 2021, from the Office of the South Carolina Secretary of State requesting that Plaintiff provide the following documents related to the RobinHood Group:
1. Bank records for the dates of January 1, 2016 through December 31, 2020
2. Receipts for all expenses during the date of January 1, 2016 through December 31, 2020
3. PayPal account records for the dates of January 1, 2016, through December 31, 2020
4. Facebook Pay records for the dates of January 1, 2016 through December 31, 2020
5. All receipts and reports submitted to the USDA regarding grants from January 1, 2017 through December 31, 2020
6. Provide documentation regarding occupancy and utilities for the dates of January 1, 2016 through December 31, 2020
7. All credit card statements for the organization from January 1, 2016 through December 31, 2020.[Doc. 114-1 at 4.]
Defendants advance several points on reply. First, they note that even Plaintiff's new argument regarding the documents she was ordered to produce applies only to some of the documents, and she offers no explanation for refusing to produce the other documents the Court has ordered her to produce. [Doc. 116 at 1-2.] As to the documents she now claims are not currently in her possession, Defendants note that Plaintiff is once again shifting her justification; that she offers no excuse for failing to at least allow Defendants to copy the documents before handing them over to the government; that Plaintiff's own documents show that she had copies of some of the documents on August 3, 2021, because she provided them at that time to the IRS; and that her own documents show that on August 11, 2021, the Secretary of State's office returned to Plaintiff the documents that she had given them on behalf of the RobinHood Group. [Id. at 1-7; see Doc. 114-1 at 9.]
Applicable Law
“Federal courts have the inherent power to order sanctions to preserve the integrity of the judicial process and to punish bad-faith conduct intended to delay or disrupt the course of litigation or to impede enforcement of a court order.” Life Techs. Corp. v. Govindaraj, 931 F.3d 259, 267 (4th Cir. 2019) (internal quotation marks omitted). Rule 37 of the Federal Rules of Civil Procedure defines the sanctions a court may levy on a party who refuses to cooperate in discovery and/or fails to comply with a court order. Under Rule 37(b), a district court may impose sanctions, including dismissing the action or holding a party in contempt of court, for a party's failure to comply with the court's discovery orders. Fed.R.Civ.P. 37(b)(2)(A); see also Fed. R. Civ. P. 16(f)(1)(c) (providing that the district “court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails to obey a . . . pretrial order”). “In determining the appropriate sanctions to impose under Rule 37, [courts] consider ‘(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 [be] effective.'” Beach Mart, Inc. v. L&L Wings, Inc., 784 Fed.Appx. 118, 124 (4th Cir. 2019) (quoting Anderson v. Found. for Advancement, Educ. & Emp't of Am. Indians, 155 F.3d 500, 504 (4th Cir. 1998)).
With the sanction of dismissal, “the range of discretion is more narrow than when a court imposes less severe sanctions.” Hathcock v. Navistar Int'l Transp. Corp., 53 F.3d 36, 40 (4th Cir. 1995) (internal quotation marks omitted). “Dismissal of a party's case for failure to comply with a court order or a discovery request is a severe sanction that must be exercised cautiously and with restraint.” Whatley v. S.C. Dep't of Pub. Safety, No. 3:05-0042-JFA, 2007 WL 120848, at *12 (D.S.C. Jan. 10, 2007). To warrant dismissal, the offending party's conduct in the litigation must demonstrate a “pattern of indifference and disrespect to the authority of the court.” Mut. Fed. Sav. & Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 93 (4th Cir. 1992).
In addition, the Fourth Circuit has emphasized the significance of providing a party with a clear warning regarding the possibility of dismissal before entering such a sanction. Hathcock, 53 F.3d at 40. While a district court may dismiss a party's case for noncompliance with the court's discovery order where the party's action constitutes “‘flagrant bad faith'” and “‘callous disregard'” of her responsibilities, Nat'l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 643 (1976), the Fourth Circuit has held the dismissal power should be exercised only when the record clearly reflects “delay or contumacious conduct by the plaintiff, ” Dove v. CODESCO, 569 F.2d 807, 810 (4th Cir. 1978) (internal quotation marks omitted).
The standard for dismissal under Rule 41 is “virtually the same” as that for dismissal under Rule 37. Carter v. Univ. of W.Va. Sys., Bd. of Trs., 23 F.3d 400, at *2 (4th Cir. 1994) (unpublished table decision). A court is authorized under Rule 41 to involuntarily dismiss a party's case for failure of the plaintiff “to prosecute or to comply with these rules or a court order.” Fed.R.Civ.P. 41(b). In determining whether dismissal is warranted under that rule, a court considers: (1) the degree of personal responsibility on the part of the plaintiff; (2) the amount of prejudice to the defendant caused by the delay; (3) the presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal. Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978).
Finally, regarding the sanction of contempt, a court may hold a party in civil contempt under Rule 37 if four elements are established by clear and convincing evidence:
(1) the existence of a valid decree of which the alleged contemnor had actual or constructive knowledge; (2) that the decree was in the movant's favor; (3) that the alleged contemnor by its conduct violated the terms of the decree, and had knowledge (at least constructive knowledge) of such violations; and (4) that the movant suffered harm as a result.United States v. Ali, 874 F.3d 825, 831 (4th Cir. 2017) (internal quotation marks omitted).
The Supreme Court has emphasized that a court may exercise its contempt power only if there is no “fair ground of doubt as to the wrongfulness of” the conduct at issue. Taggart v. Lorenzen, 139 S.Ct. 1795, 1801 (2019) (internal quotation marks and emphasis omitted). Accordingly, holding the party in contempt is appropriate only when the party can “discern from the language of a court's order the actions necessary to comply with the court's directive.” Life Techs., 931 F.3d at 268.
A magistrate judge's contempt authority is outlined in 28 U.S.C. § 636(e). For cases such as the present one, where the case is not a misdemeanor case under 18 U.S.C. § 3401 and the magistrate judge is not presiding with the parties' consent under 28 U.S.C. § 636(c), the magistrate judge's contempt authority is provided in 28 U.S.C. § 636(e)(6)(B)(iii). That subsection provides that when an “act constitutes a civil contempt, ”
the magistrate judge shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be adjudged in contempt by reason of the facts so
certified. The district judge shall thereupon hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a district judge.28 U.S.C. § 636(e)(6)(B)(iii).
Discussion
The undersigned concludes that the Court should dismiss Plaintiff's action under Rules 37 and 41. As Plaintiff is proceeding pro se, she is personally responsible for her failure to file comply with this Court's discovery Orders. On September 22, 2021, the Court rejected all of Plaintiff's arguments against producing the requested documents and answering the interrogatories in question and granted Defendants' motion to compel, specifically warning Plaintiff “that her failure to fully comply with this Order may result in the Court imposing sanctions under Rule 37(b)(2) of the Federal Rules of Civil Procedure and/or recommending dismissal of this action pursuant to Rule 41.” [Doc. 101; see Doc. 103.] Despite being advised of the possible consequences if she failed to comply, Plaintiff has elected not to do so.
Regarding the documents that she claims are under audit, Plaintiff offers no support for her position that the audit makes the documents privileged and she offers no explanation for not at least giving Defendants the opportunity to copy the documents before she handed the documents over to the government. Her constantly shifting justifications for failing to comply with her discovery obligations are a strong indication of her bad faith, as are her decision to purportedly give away her only copies of these documents without allowing Defendants to copy them, her failure to turn over the documents the South Carolina Secretary of State returned to her, and her flat refusal to answer the interrogatories the Court required her to answer. Defendants have suffered harm from Plaintiff's failure to comply with the Court's Order because, by refusing to provide the discovery in question-after a request from opposing counsel and an order of the Court compelling compliance-Plaintiff has impaired Defendants' ability to obtain material information they need to defend against Plaintiff's claim. For example, Defendants point out that having a list of the entities with which Plaintiff is involved “is critical as Defendants suspect Plaintiff has created a shell game for her to hide her money and her wrongful conduct.” [Doc. 107 at 9.] Defendants note that Plaintiff “filed a complaint alleging that Defendants defamed her by alleging that she was embezzling money through her company and non-profit organization, Open Air Celebrations, LLC and RobinHood Group, ” that Defendants pled truth, among other defenses, and that “[t]o substantiate this defense, Defendants are entitled to the books, corporate records, tax returns, and financial statements of those entities and Plaintiff, personally.” [Id. at 8-9.] Of course, Plaintiff's recalcitrance has also required Defendants to spend time and effort attempting to obtain the discovery the Court has ruled they are entitled to.
The Court notes that even after Defendants filed their sanctions motion on October 22, 2021, Plaintiff still has not provided the documents the Court ordered her to provide and has not answered the interrogatories the Court ordered her to answer. The Court concludes that Plaintiff has demonstrated a pattern of indifference and disrespect to this Court's orders that cannot be countenanced and that such noncompliance must be deterred. See Gilbert v. City of Spartanburg, No. 7:16-cv-03088-MGL-JDA, 2017 WL 1040725, at *3 (D.S.C. Feb. 24, 2017) (noting the need for deterrence of similar noncompliance), Report and Recommendation adopted by 2017 WL 1020981 (D.S.C. Mar.16, 2017). Additionally, because Plaintiff has already ignored Court Orders, sanctions less drastic than dismissal would not be effective. Any sanction other than dismissal would fail to cure Plaintiff's determined obdurateness and impede the administration of justice. And the Court notes that Plaintiff's pro se status does not immunize her from the imposition of sanctions. Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989).
Accordingly, based upon the foregoing, the Court recommends that Plaintiff's case be dismissed under Rules 37 and 41. See Gilbert, 2017 WL 1040725, at *4 (dismissing action under Rules 37 and 41 for failure to comply with discovery requests and this Court's Orders compelling discovery).
Alternatively, if the Court is not inclined to dismiss the action under Rules 37 and 41, the undersigned concludes that the applicable facts here are those set forth above and they justify finding Plaintiff in contempt. First, the elements necessary to support a contempt finding are all present here. This Court's Order granting Defendants' motion to compel [Doc. 101] was clearly in the favor of the movants, Defendants. The alleged contemnor, Plaintiff, had actual or constructive knowledge of this Order insofar as the Clerk sent copies of the Order to her at her address. [Doc. 104.] The Order was clear as to what it required insofar as it required production of the identified documents and answering of the identified interrogatories. Thus, by failing to produce the identified documents and answer the identified interrogatories, Plaintiff plainly violated the terms of the Order and had at least constructive knowledge of her violation. As the Court has noted, Plaintiff's constantly shifting justifications for failing to comply with discovery obligations are a strong indication of her bad faith, as are her decision to purportedly give away her only copies of these documents without allowing Defendants to copy them, her failure to turn over the documents the South Carolina Secretary of State returned to her, and her flat refusal to answer the interrogatories the Court required her to answer. Finally, Defendants have suffered harm from Plaintiff's failure to comply with the Court's Order because, by refusing to provide the discovery in question, Plaintiff has impaired Defendants' ability to obtain material information they need to defend against Plaintiff's claim. Given the facts that the undersigned certifies in this Report and Recommendation, see Commonwealth Constr. Co. v. Redding, No. 14-cv-3568-GLR, 2016 WL 8671536, at *2 (D. Md. May 6, 2016) (noting that a “certification of facts [under 28 U.S.C. § 636(e)(6)(B)(iii)] commonly takes the form of a Report and Recommendation”), the undersigned also finds that the factors to be considered when determining which particular sanction is warranted support holding Plaintiff in contempt. In light of the plainness of the Order and the fact that a copy of the Order was sent to Plaintiff's address, the Court finds that Plaintiff has acted in bad faith in refusing to comply. As the Court has already noted, her noncompliance has harmed Defendants by impairing their ability to defend against Plaintiff's action as well as by causing them to incur attorneys' fees. The Court further finds that the need for deterrence weighs heavily in favor of a severe sanction, such as holding Plaintiff in contempt. Given her continued refusal to comply with this Court's Order, the Court is concerned that her recalcitrance will continue at least until she is severely sanctioned, and the Court finds that finding her in contempt would be an appropriate sanction. Finally, the undersigned finds that any less severe sanction would not be appropriate in light of the continued harm that Plaintiff is causing to Defendants. For all of these reasons, if the Court declines to dismiss the action based on Rules 37 and 41, the undersigned recommends that Plaintiff be required to appear before the Court for a hearing at which she will show cause why she should not be held in contempt.
Plaintiff's Motions
If the Court accepts the undersigned's recommendation to dismiss this case under Rules 37 and 41, Defendants' request to hold Plaintiff in contempt of court will be rendered moot, as will Plaintiff's motions to compel discovery and for summary judgment. However, the undersigned will briefly address these motions in case the Court declines to dismiss this case.
Motion to Compel
In Plaintiff's motion to compel, Plaintiff first argues that Defendants should be compelled to answer interrogatories that Plaintiff served on them, to which one of Defendants' objections was that Rule 33(a) allows for only 25 written interrogatories to be served by one party on any other party. [Doc. 105 at 1-2.] Plaintiff does not argue that Defendants are incorrect regarding their judgment as to what constitutes a separate written interrogatory. Rather, her position is that Defendants' objection is unfounded because the 25-interrogatory limitation applies separately to each set of interrogatories that a party serves on another party. [Doc. 105 at 2.] Thus, she argues that she is entitled to require
Defendants to answer more than 25 interrogatories so long as each set that she serves contains no more than 25. [Id.] The Court disagrees.
Federal Rule of Civil Procedure 33(a)(1), provides, "Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1) and (2)." Plaintiff's argument notwithstanding, the rule plainly caps the number of written interrogatories that may be served on any other party absent leave of court, and it provides no exception for interrogatories divided into multiple sets.
Additionally, as Defendants point out, the fact that Plaintiff served more than 25 interrogatories was not Defendants' only objection to the interrogatories in question. [Doc. 112 at 3; see Doc. 105-1 at 4-6.]
Plaintiff also contends that Defendants' responses to Requests to Produce 4 and 5 are not fully complete because Defendants answered "none" when asked to produce complaints to the USDA and the South Carolina Secretary of State's Office. [Doc. 105 at 2.] Defendants explain that these documents are not in Defendants' possession, custody, or control. [Doc. 112 at 3 (citing Fed.R.Civ.P. 34(a)(1)).] Plaintiff emphasizes that Defendant did produce a complaint that Cooksey had submitted to the IRS. [Doc. 105 at 2; see 105-1 at 11, 18.] However, Defendants note that they have produced the documents that they have. [Doc. 112 at 3.] They argue that "[t]o the extent [Defendants] submitted the complaints, Plaintiff fails to appreciate that if they were submitted through an online program, then there would be no copy to retain." [Id.]
The Court sees no basis to conclude that Defendants had possession, custody, or control over any responsive document they have not produced. Accordingly, if the Court declines to dismiss the action under Rules 37 and 41, the Court recommends that Plaintiff's motion to compel be denied.
Summary Judgment Motion
Generally speaking, “summary judgment [must] be refused where the nonmoving party has not had the opportunity to discover information that is essential to [its] opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986). At the same time, the party opposing summary judgment “cannot complain that summary judgment was granted without discovery unless that party had made an attempt to oppose the motion on the grounds that more time was needed for discovery.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996). If a party believes that more discovery is necessary for it to demonstrate a genuine issue of material fact, the proper course is to file an affidavit pursuant to Rule 56(d) of the Federal Rules of Civil Procedure stating “that it could not properly oppose a motion for summary judgment without a chance to conduct discovery.” Id. However, ?in some cases courts have held that summary judgment was premature even when the opposing party failed to file a Rule 56([d]) affidavit.” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (collecting cases). Essentially, if “the district court [is] on notice of the reasons why summary judgment [is] premature” and “the nonmoving party was not lax in pursuing discovery, ” the failure to file a Rule 56(d) affidavit may be excused. Id. at 245.
Here, Plaintiff filed her motion for summary judgment or mediation on the date that discovery was due to be completed. [Doc. 69.] However, as discussed above, the parties have been engaged in a discovery dispute, and Plaintiff has refused to comply with the Court's Order compelling her discovery responses. Indeed, because Defendants were seeking sanctions regarding Plaintiff's refusal to comply with the Court's Order, this Court stayed Defendants' deadline for responding to Plaintiff's motion. Nevertheless, in their motion for contempt and sanctions, Defendants outline the need for discovery, asserting that “Plaintiff's refusal to provide the requested [discovery] effectively stops Defendants from preparing their case” and that they cannot proceed with discovery, including depositions, until Plaintiff produces responsive documents. [Doc. 107 at 9.] Based on all of the above, if the Court declines to dismiss this action under Rules 37 and 41, the undersigned recommends that Plaintiff's summary judgment motion be denied as premature. Additionally, to the extent that Plaintiff alternatively requests mediation, the Court notes that it has already granted a motion by Defendants to excuse the parties from mediation [Doc. 123] and thus recommends that this request be denied.
RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that Defendants' sanctions motion [Doc. 107] motion be GRANTED IN PART and DENIED IN PART. The undersigned recommends that Plaintiff's case be dismissed under Rules 37 and 41 of the Federal Rules of Civil Procedure but that the motion otherwise be denied.
Defendants argue that they are entitled to an award of reasonable expenses, including attorney's fees, caused by Plaintiff's failure to participate in discovery and caused by Plaintiff's filing of meritless motions. [Doc. 107 at 13.] In light of Plaintiff's status as a pro se litigant, the Court recommends that Defendants' motion for an award of fees and costs be denied. See Crump v. Savannah Hwy. Auto. Co., No. 2:11-1567-DCN-BM, 2012 WL 2072762, at *3 (D.S.C. Mar. 12, 2012), Report and Recommendation adopted by 2012 WL 2130952 (D.S.C. June 8, 2012). The Court also notes that Plaintiff filed a motion to proceed in forma pauperis regarding her initial complaint in state court and it appears that the motion was granted. [Docs. 107-3; 107-4.]
The undersigned further recommends that Plaintiff's motion to compel [Doc. 105] be FOUND AS MOOT and that Plaintiff's motion for summary judgment [Doc. 117] be FOUND AS MOOT. Alternatively, if the Court does not dismiss this action under Rules 37 and 41, the undersigned recommends that the Court order Plaintiff to appear for a hearing at which she will show cause why she should not be held in contempt for the reasons outlined above and that Plaintiff's motions be denied.
IT IS SO RECOMMENDED.