Opinion
5:20-CV-29-BO
05-14-2021
AMOS N. JONES, Plaintiff, v. CAMPBELL UNIVERSITY, INC., et al., Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on the following motions: Plaintiffs Cross Motion for Partial Summary Judgment, [DE-101], Motion to Stay Discovery, [DE-103], Motion for Leave to File Excess Pages, [DE-108], Motion for Extension of Time to File Response/Reply, [DE-120], First Motion to Quash Subpoenas, [DE-137], and Motion to Quash Amended Subpoenas, [DE-143]; and Defendants' Motion for leave to deposit property pursuant to Fed.R.Civ.P. 67, [DE-99], Motion for Protective Order Regarding Confidentiality of Documents, [DE-111], Motion to Strike, [DE-115], Motion to Compel Production of Documents and Responses to Interrogatories, [DE-122], Motion for Extension of Time to Conduct Plaintiffs Independent Medical Exam and Serve the Corresponding Expert Report, [DE-125], Motion for Leave to File Surreply, [DE-130], Motion to Dismiss Plaintiffs Amended Complaint with Prejudice or Compel Plaintiffs Deposition and IME, [DE-134], and Motion for Clarification of Scheduling Order and an Expedited Briefing Schedule, [DE-154]. For the reasons that follow, it is recommended that Defendants' motion to dismiss with prejudice be allowed and that all other motions be denied as moot. It is further ordered that Plaintiff pay Defendants' reasonable costs and attorney's fees associated with the November 10, 2020 deposition.
I. Background
This case was ordered transferred to this court from the U.S. District Court for the District of Columbia and was received on January 23, 2020. [DE-51]. Plaintiff, a former law professor at Campbell University Law School in Raleigh, North Carolina from July 2011 to May 2017, alleged that he was discriminated against on the basis of his race in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, when Campbell University and its officers and employees failed to appoint him as a tenured professor on the law school faculty for the 2015-16 and 2016-17 academic years and that he was discharged from his employment in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission. Plaintiff also alleged claims for breach of contract, defamation, negligent supervision, common law fraud/false pretenses, intentional infliction of emotional distress, and conversion. The claim for intentional infliction of emotional distress was dismissed on Defendants' motion. [DE-79]. The parties engaged in mediation in June 2020, but were ultimately unsuccessful. [DE-89, -91 ].
The parties began discovery and several disputes arose. On August 3, 2020, the court issued a protective order precluding compliance with several subpoenas issued by Plaintiff and ordering Plaintiff to submit to a Rule 35 Independent Medical Examination (“IME”) during the week of October 12, 2020. [DE-98]. Six motions related to discovery are now pending before the court. [DE-103, -111, -122, -125, -137, -143], The parties were unable to come to an agreement about how Plaintiffs personal property consisting of 96 books and a chair should be returned to him and filed two motions concerning this dilemma in August 2020, which are also pending before the court. [DE-99, -101].
On September 30, 2020, Plaintiff filed a motion to dismiss the case without prejudice, pursuant to Fed.R.Civ.P. 41(a)(2), [DE-118], and while that motion was pending Defendants filed a motion to dismiss Plaintiffs case with prejudice or to alternatively compel Plaintiffs deposition and IME, [DE-134], On November 30, 2020, Plaintiff filed a motion to convert his motion to dismiss to a motion to stay. [DE-140]. On December 3, 2020, the court allowed Plaintiffs motion to convert and found good cause to stay this matter for 120 days, until April 2, 2021, in light of Plaintiff s health conditions. Prior to the expiration of the stay, on February 26, 2021, Plaintiff sought another stay for medical reasons. [DE-145]. On April 14, 2021, the court denied Plaintiffs stay motion, lifted the stay, and referred all pending motions to the undersigned. [DE-155]. On April 15, 2021, Plaintiff filed a notice of voluntary dismissal, pursuant to Fed.R.Civ.P. 41 (a)(l)(A)(i), which purported to automatically terminate this case. [DE-156]. Plaintiff then, on April 27, 2021, filed a notice of intent to “file an all-parties-signed joint stipulation to the dismissal with prejudice of this action, including all claims and counter-claims stated against all parties. The signatures of the Parties and counsel were being affixed starting today, with the expectation that the final stipulation to be filed very soon.” [DE-158]. Two days later, Defendants filed a notice indicating that the parties had not agreed to a stipulated dismissal with prejudice and that Plaintiffs notice of voluntary dismissal without prejudice was improper and had no effect on this action. [DE-159]. Finally, on May 10, 2021, Plaintiffs counsel filed a motion to withdraw from representation in this case. [DE-162], II. Analysis
Defendants move to dismiss the amended complaint with prejudice pursuant to Fed.R.Civ.P. 37(d) and 41(b) based on Plaintiffs failure to attend his November 10, 2020 deposition, his lack of diligence in prosecuting his claims, and his failure to meaningfully participate in the discovery process. [DE-134]. On November 16, 2020, Plaintiff filed a notice regarding the motion to dismiss indicating that a fuller memorandum would be filed in the coming days, [DE-13 6], but no such memorandum was filed.
The court may sanction a party who fails to appear for his deposition after being served with proper notice. Fed.R.Civ.P. 37(d)(1)(A)(i). Among the available sanctions is dismissal with prejudice. Fed.R.Civ.P. 37(b)(2)(A)(v). The court may also dismiss an action on a defendant's motion “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order[.]” Fed.R.Civ.P. 41(b). “The legal standard for dismissals under Rule 37 is virtually the same as that for dismissals for failure to prosecute under Rule 41.” Carter v. Univ. of W.Va. Sys., Bd. of Trustees, 23 F.3d 400 (4th Cir. 1994). The court must consider the following four factors before imposing the ultimate sanction of dismissal: “(1) the plaintiffs degree of personal responsibility; (2) the amount of prejudice caused the defendant; (3) the presence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal.” Id. “While the district court clearly has the authority to dismiss complaints, ... this authority should be exercised with restraint and ‘[a]gainst the power to prevent delays must be weighed the sound public policy of deciding cases on their merits.'” Id. (citations omitted).
As to the first factor, Plaintiff bears full responsibility for failing to appear at his November 10, 2020 deposition. After attempting to confer with Plaintiffs counsel for more than two months regarding the scheduling of Plaintiffs deposition, on October 22, 2020, Defendants noticed Plaintiffs deposition for November 10, 2020. Defs.' Mot. [DE-134] ¶¶ 3-10. In a letter accompanying the deposition notice, defense counsel indicated they were “open to agreeing to the alternate dates of November 11 or November 12 if those dates work better for Mr. Jones” and requested that “If Mr. Jones is still too ill to attend a deposition on November 10, and subsequent IME the week of November 16, 2020, please let us know as soon as possible, but no later than October 30, 2020.” [DE-134-1] at 3. Hearing nothing from Plaintiffs counsel in response to the deposition notice, Defendants appeared at the noticed deposition with a court reporter, videographer, and expert witness, but Plaintiff failed to appear. Defs.' Mot. [DE-134] ¶ 13-14.
Plaintiff in his “notice” in response to Defendants' motion to dismiss asserts that Defendants knew of (1) Plaintiffs other obligations, including “a trio of federal cases in Washington, D.C.” during September, October, and November 2020, that required a “re-shuffling” of his schedule in light of his medical challenges; (2) Plaintiffs non-assent to Defendants' unilateral scheduling of the November 10, 2020 deposition in Raleigh, North Carolina given that Plaintiffs home and office are 266 miles away; and (3) an order for Plaintiff to appear at a mediation in Washington, D.C. on November 10, 2020. Pl.'s Notice [DE-136] at 1-2. Plaintiff also stated he would file briefing with “documentary evidence” exhibiting Defendants' knowledge. Id. at 1. Plaintiff failed to file said briefing with evidence, and, in any event, none of the reasons presented in the notice justifies Plaintiffs unilateral decision to not appear at the deposition. See Wilson v. Fairfield Inn Suites-Marriott, RDU, No. 1:16CV899, 2017 WL 4772425, at *6 n.9 (M.D. N.C. Oct. 20, 2017) (noting a plaintiffs disagreement with the deposition schedule of the noticing party does not excuse compliance with a properly noticed deposition), subsequently aff'd, 727 Fed.Appx. 784 (4th Cir. 2018). Plaintiff did not challenge the sufficiency of the notice, object in substance to the discovery sought, request a continuance of the deposition, or seek a protective order. See Fed.R.Civ.P. 37(d)(2) (“A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).”). Defendants' letter included with the deposition notice invited alternative dates but Plaintiff did not respond and then simply failed to attend. Rather than work with Defendants to find a mutually-convenient date for the deposition, Plaintiff, who himself is an attorney, chose to do nothing and has given the court no basis on which to apportion the responsibility elsewhere.
The second and third factors also support dismissal. Defendants were greatly prejudiced by Plaintiff's failure to attend the deposition and larger failure to meaningfully engage in discovery. In addition to the costs associated with the court reporter and videographer and the defense attorneys' and their expert's time related to the deposition, Defendants have spent more than a year attempting to conduct discovery that Plaintiff has largely sought to avoid. See Bland v. Booth, No. 7:19-CV-63-BO, 2020 WL 2575556, at *2 (E.D. N.C. May 21, 2020) (finding plaintiff's non-compliance, including failing to attend a deposition, prejudiced defendants where the defendants' lawyers spent a year attempting to conduct discovery with an opposing party who showed little interest in seriously participating in his own case). For example, the court allowed a motion to compel and ordered an IME of Plaintiff to occur the week of October 12, 2020. [DE-98]. Plaintiff's counsel informed Defendants' counsel that Plaintiff was ill and could not appear for the IME but never sought court leave to extend the time in which to appear for the court-ordered IME, forcing Defendants to seek an extension. Neither the IME nor the deposition has taken place, and Defendants have filed three additional discovery motions in an attempt to move discovery in this case forward. Importantly, rather than participate in discovery, Plaintiff has sought multiple stays and voluntary dismissals without prejudice, largely bringing this case to a standstill, while pursuing litigation in other courts. Pl.'s Notice [DE-136] at 1-2 (citing Plaintiff's schedule in a trio of other federal cases and his appearance at a mediation in another case as reasons he did not appear at his deposition); Apr. 14, 2021 Order [DE-155] (denying motion to stay for medical reasons where Plaintiff is represented by multiple counsel and recently filed a new action in the U.S. District Court for the District of Columbia). Defendants have spent significant resources attempting to defend Plaintiffs claims already and should not have to expend further resources, in this case or a future case, defending claims Plaintiff is not interested in prosecuting.
As to the fourth factor, given Plaintiffs lack of interest in moving this case forward on any terms but his own, a lesser sanction would not be effective. Since the court denied Plaintiffs last motion to stay one month ago, Plaintiff has filed a specious notice of voluntary dismissal and a notice of forthcoming stipulated dismissal with prejudice that Defendants have disavowed, and Plaintiffs counsel have moved to withdraw from the case. Plaintiffs latest filings are strong evidence that he has no interest in moving this case forward and that nothing short of a dismissal with prejudice is appropriate. See Williams v. PUMA N. Am., Inc., No. CV TJS-19-3340, 2020 WL 6684901, at *5 (D. Md. Nov. 12, 2020) (finding “dismissal with prejudice will ensure that Williams is unable to refile her claims against PUMA. This will save PUMA the future expense of defending itself against a litigant who does not comply with the rules ....”). Accordingly, it is recommended Plaintiffs amended complaint be dismissed with prejudice and all remaining motions be denied as moot. .
Plaintiff has a history of violating the Federal and Local Civil Rules in this case. For example, Plaintiff was sanctioned by the D.C. District Court for violating Rule 11 by pressing a frivolous legal argument. See Sept. 4, 2018 Order [DE-45] at 4-6 (“The decision to continue pressing this frivolous assertion of jurisdiction exceeds the bounds of creative advocacy and some monetary sanction is necessary to deter this sort of behavior in the future.”). Plaintiffs “corrected” response brief was stricken by this court for failure to comply with Local Rule 7.1(f). [DE-73, -74, -79]. Plaintiff inexplicably filed a cross-motion for summary judgment in response to Defendants' motion to deposit property with the court, which could not be reasonably construed as a motion for summary judgment. [DE-101]. Plaintiffs cross-motion for summary judgment failed to comply with Local Civil Rule 56.1(a). This is not an exhaustive list, and Plaintiffs repeated failure to comply with the rules both prejudices Defendants and is a drain on the court's valuable resources.
Finally, pursuant to Fed.R.Civ.P. 37(d)(1)(3), the court in its discretion finds an award of fees and costs associated with the deposition is appropriate. The rule provides that “the court must require the party failing to act, 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(d)(1)(3). Plaintiff has presented no grounds from which the court could find that his failure to appear at the November 10, 2020 deposition was substantially justified or that the circumstances would make an award of expenses unjust. Plaintiff simply prioritized other matters, failed to appear, and failed to provide notice that he would not appear, causing Defendants to unnecessarily expend substantial resources on a deposition that did not occur. See Gaston v. Anson Cnty. Sch. Dist., No. 3:17-CV-00232-RJC-DSC, 2019 WL 2745854, at *8 (W.D. N.C. July 1, 2019) (awarding attorneys' fees and court reporting costs for the deposition Plaintiff refused to attend), aff'd sub nom. Gaston v. Anson Cnty. Bd. of Educ., 788 Fed.Appx. 189 (4th Cir. 2019).
However, the court declines to award fees and costs associated with the filing of the motion. Circumstances at the time the motion was filed were such that dismissal may not have been warranted on the failure to appear at the deposition alone. Plaintiffs subsequent actions informed the court's decision to recommended dismissal of this case, and thus the court will not award fees and costs associated with bringing the motion. Accordingly, the court orders Plaintiff to pay the Defendants' reasonable costs and attorney's fees associated with the November 10, 2020 deposition. Defendants shall file by June 4, 2021, an affidavit setting out such costs and attorney's fees and a supportive memorandum of law, which includes information that will help the court apply the Johnson!Barber factors. See Hensley v. Eckerhart, 461 U.S. 424, 433-34 & n.9 (1983) (explaining lodestar calculations and approving the twelve-factor test set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), overruled on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989)); Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978) (adopting Johnson's twelve-factor test); see also Blum v. Stenson, 465 U.S. 886, 895 n.ll (1984) (party seeking an award of fees must “produce satisfactory evidencein addition to the attorney's own affidavits-that the requested rates” are in accord with the prevailing market rates). Plaintiff may file a response to Defendants' filing by June 18, 2021. If Plaintiff does not file a response by that date, the court will deem him to have no objection to the costs and attorney's fees claimed by Defendant.
The Johnson/Barber factors include:
III. Conclusion
For the reasons stated herein, it is recommended that Defendants' motion to dismiss, [DE-134], be allowed and all remaining motions be denied as moot. Additionally, the court orders Plaintiff to pay Defendants' reasonable costs and attorney's fees associated with the November 10, 2020 deposition.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until May 28, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorney's fees awards in similar cases.Grissom v. Mills Corp., 549 F.3d 313, 321 (4th Cir. 2008) (quotation omitted).