Haji v. NCR Corp.
Haji v. NCR Corp.
2019 WL 13268216 (N.D. Ga. 2019)
January 8, 2019
Fuller, J. Clay, United States Magistrate Judge
Summary
The Plaintiff failed to produce ESI, including a USB memory card containing responsive document production and a diary in electronic form. The Court found that the Plaintiff had failed to produce the diary or to raise formatting issues with the document until nearly a year after its production was required. The Court recommended that the Defendant's Third Motion for Sanctions be granted and that the Plaintiff's Complaint be dismissed, and directed the Clerk to terminate the reference of the case. The Court also noted that the Plaintiff may subscribe to the Public Access to Court Electronic Records (PACER) system in order to access certain detailed case information.
Additional Decisions
NOURADDINE OMAR HAJI, Plaintiff,
v.
NCR CORPORATION, Defendant
v.
NCR CORPORATION, Defendant
CIVIL ACTION FILE NO.: 1:17-CV-01961-SCJ-JCF
United States District Court, N.D. Georgia, Atlanta Division
Filed January 08, 2019
Fuller, J. Clay, United States Magistrate Judge
FINAL REPORT AND RECOMMENDATION
*1 This case is before the Court on Nouraddine Haji's (“Plaintiff”) Motion Against Awarding Defense Attorney's Fee (Doc. 68) and NCR Corporation's (“Defendant”) Third Motion For Sanctions (Doc. 69). For the reasons that follow, it is RECOMMENDED that Plaintiff's motion be DENIED, that Defendant's motion be GRANTED, and that Plaintiff's case be DISMISSED.
Background
Plaintiff alleges that his former employer, NCR Corporation (“Defendant”), discriminated against him on the basis of religion and retaliated against him in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq. (“Title VII”). (Doc. 1). Defendant answered Plaintiff's Complaint on July 19, 2017. (Doc. 6). On October 2, 2017, Defendant served discovery requests on Plaintiff through his then-counsel. (See Doc. 62 at 1; see also Docs. 11, 12). Plaintiff's counsel withdrew on November 13, 2017 (see Minute Entry on November 13, 2017), after which Plaintiff elected to proceed pro se and Defendant began serving its discovery requests directly on Plaintiff. (See, e.g., Doc. 46 at 26-27). At a teleconference before the undersigned on January 2, 2018, Plaintiff agreed to an extension of his deadline to respond to Defendant's discovery requests by no later than January 12, 2018. (Doc. 23 at 1). However, Plaintiff failed to provide discovery responses by the agreed-upon deadline. (Doc. 62 at 2).
On January 19, 2018, Defendant filed its first Motion For Sanctions, which sought dismissal of Plaintiff's case, or alternatively, an order compelling Plaintiff to respond to outstanding discovery requests. (Doc. 25). On February 16, 2018, the undersigned awarded Defendant reasonable expenses and attorney's fees caused by Plaintiff's failures to respond under Federal Rule Civil Procedure (“Rule”) 37(d)(3). (Doc. 32 at 5). The undersigned denied Defendant's request for dismissal “without prejudice to its right to seek dismissal if Plaintiff does not comply with his discovery obligations going forward.” (Id.). Further, the Court directed Plaintiff “to provide full and complete responses to Defendant's interrogatories [ ] and requests for production of documents [ ] NO LATER THAN MARCH 2, 2018.” (Id. at 6). Finally, the Court warned Plaintiff that “if he fails to comply with this Order, Defendant may file a motion to compel and/or for additional sanctions, including dismissal of this action, and the undersigned may recommend to the District Judge that this action be dismissed.” (Id.).
Plaintiff provided some responses, but Defendant found them deficient and filed a Second Motion For Sanctions on March 6, 2018. (Doc. 42). On November 1, 2018, the Court granted in part Defendant's motion in light of Plaintiff's failure to provide complete discovery responses.[1] (Doc. 62 at 41). The Court also ordered Plaintiff to submit “copies of all unredacted entries from his diary dating from the day he was hired by Radiant Systems to the date he filed his complaint in this matter no later than fourteen days from the date of entry of this Order ... by mailing those documents to the undersigned” for an in camera review. (See id. at 41-42 (emphasis in original)). On November 14, 2018, Plaintiff moved the Court for an extension of time to submit his discovery responses to Defendant and to submit his relevant diary entries to the Court. (Doc. 64 at 1). The Court granted Plaintiff's motion in part, ordering that Plaintiff submit his full discovery responses to Defendant and his diary entries to the Court “no later than November 30, 2018.” (Doc. 66 at 4 (emphasis in original)). Once again, the Court cautioned Plaintiff that failure to comply with the Court's order may result in recommendation to the District Judge that his case be dismissed. (Id. at 3). As of November 30, 2018, Defendant still had not received any additional discovery materials from Plaintiff (see Doc. 69 at 2), and the Court had not received any copies of Plaintiff's diary entries.
*2 On December 3, 2018, Plaintiff filed a document with the Court titled “Plaintiff's Response To Submit Complete Response To Interrogatories And Production Of Document[.]” (Doc. 67). This filing resurrected arguments raised earlier in his response to Defendant's second motion for sanctions (see Doc. 46), such as pointing to his perceived adequacy of previously-submitted discovery responses, arguing that he should not have to provide a W-2 for employment at which he was only compensated for orientation, contending that Defendant's discovery requests represented an attempt to force him to disclose confidential information, and accusing defense counsel of misleading the Court. (See Doc. 67 at 2-8). Plaintiff also attempted to augment explanations for his discovery deficiencies. (Id.). Additionally, Plaintiff for the first time asserted that his diary was in electronic form and that it could not be produced because of technical issues. (Id. at 9). On the same day, Plaintiff filed a document titled Motion Against Awarding Defense Attorney's Fee. (Doc. 68).
On December 12, 2018, Defendant filed its Third Motion For Sanctions, which seeks dismissal of Plaintiff's action on grounds of delay, further violations of this Court's orders, and further noncompliance with his discovery obligations. (Doc. 69). Before his response was due to Defendant's motion for sanctions, Plaintiff filed a Motion To Stay All Proceedings, again arguing that his discovery obligations were complete, that defense counsel employed “bait and switch tactics[,]” and that documents responsive to Defendant's requests no longer exist. (Doc. 70 at 5). In an Order entered on December 18, 2018, the Court noted that summary judgment deadlines had already been stayed pending the resolution of discovery issues, that Plaintiff “has had several opportunities to assert arguments to limit the scope of Defendant's discovery[,]” and that “Plaintiff has also had several extensions of time to comply with Defendant's discovery requests dating back to January of this year.” (Doc. 72 at 4). Consequently, the Court found that a stay of Plaintiff's deadlines to respond to discovery was unwarranted and denied Plaintiff's motion. (Id. at 5). The undersigned further ordered as follows:
Plaintiff is DIRECTED to file a response to Defendant's Third Motion For Sanctions (Doc. 69) on or before December 31, 2018. To be clear, Plaintiff's response must be filed on or before that date. To the extent Plaintiff will file his response by mail, he must do so with enough time to ensure that the response is filed with the Court on December 31, 2018. Plaintiff is once again cautioned that his failure to comply with this Order may result in the undersigned's recommendation to the District Judge that the case be dismissed.
I. Plaintiff's Motion Against Awarding Defense Attorney's Fees (Doc. 68)
On November 1, 2018, rather than recommending dismissal of Plaintiff's case for his failure to comply with his discovery obligations, the undersigned awarded Defendant $4,097.00 in reasonable attorney's fees incurred in preparing its motion for sanctions. (See Doc. 62 at 29). Plaintiff now requests that “the court set aside the awarding of the attorney's fees to the defense attorney until evidences from both sides are presented either in front of the jury trail [sic] or be allowed to present my evidence in hearing as to why this substantial fee shouldn't be awarded to the defense attorney.” (Doc. 68 at 1). The Court construes this submission as a motion for reconsideration of the undersigned's November 1, 2018 attorney's fees award. See Crystal Commodore Pippen v. Georgia-Pacific Gypsum LLC, Civil Action File No. 1:07-CV-1565-BBM/AJB, 2009 U.S. Dist. LEXIS 135216, at *41 (N.D. Ga. Mar. 11, 2009) (construing the plaintiff's motion as a motion for reconsideration where “[a] review of Plaintiff's motion shows that it essentially is a motion for reconsideration of the Court's compelling discovery/sanctions order[.]”). Plaintiff's motion is due to be denied.
*3 “Under this Court's Local Rules, ‘[m]otions for reconsideration shall not be filed as a matter of routine practice.’ ” Id., 2009 U.S. Dist. LEXIS 135216, at *41 (citing LR 7.2E, NDGa). “Motions for reconsideration are to be filed only when ‘absolutely necessary’ where there is: (1) newly discovered evidence; (2) an intervening development or change in controlling law; or (3) a need to correct a clear error of law or fact.” Reid v. BMW of N. Am., 464 F. Supp. 2d 1267, 1270 (N.D. Ga. 2006). “The decision to grant a motion for reconsideration is committed to the sound discretion of the district court.” Id.
Plaintiff's motion does not meet the requirements for filing a motion for reconsideration. Plaintiff argues that Defendant's award represents an “extreme” financial burden exacerbated by the Court's denial of his motion to electronically file, and defense counsel “shouldn't be allowed to claim frivolous motions as evidence for [ ] attorney fees and costs for preparing and requesting documents that are already in his [possession].” (Doc. 68 at 1-2). These arguments do not reflect newly discovered evidence, a change or development in controlling law, or a need to correct a clear error of law or fact. While the Court is sensitive to Plaintiff's financial difficulties, Plaintiff chose to initiate this action against Defendant and is therefore required to comply with this Court's rules and procedures, including discovery deadlines set by the Court as well as this Court's Standing Order that pro se litigants be required to file all documents in paper form. See Brandon v. Lockheed Martin Aeronautical Sys., 393 F. Supp. 2d 1341, 1348 (N.D. Ga. 2005) (“[P]ro se litigants are still required to conform to the procedural rules.”); see also LR NDGa, App. H – A22 (“Pro se filers shall file paper originals of all complaints, pleadings, motions, affidavits, briefs, and other documents”).[2] Plaintiff's status as a pro se litigant does not insulate him from monetary sanctions for failing to comply with these rules. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (“If a pro se litigant ignores a discovery order, he is and should be subject to sanctions like any other litigant.”).
Moreover, Plaintiff's description of Defendant's motions to compel as “frivolous” is inaccurate. The Court's November 1, 2018 Order discussed Plaintiff's incomplete discovery responses. (See Doc. 62 at 8-25). These deficiencies represented a proper basis for Defendant's meritorious motions to compel and for sanctions. If Plaintiff wanted to state his position he needed to do so when he responded to Defendant's motion. (See Doc. 46). Alternatively, if he took exception with any order, he could have sought review by the District Judge. See FED. R. CIV. P. 72(a). Plaintiff may not now repackage the arguments he already made or offer alternative legal theories not presented in his initial response to Defendant's motion. See Adler v. Wallace Computer Servs., Inc., 202 F.R.D. 666, 675 (N.D. Ga. 2001) (finding that a motion for reconsideration “may not be used to offer new legal theories ... that could have been presented in conjunction with the previously filed motion or response, unless a reason is given for failing to raise the issue at an earlier stage”); see also Reid, 464 F. Supp. at 1270-71 (“Motions for reconsideration are not appropriate to present the Court with arguments already heard and dismissed, to repackage familiar arguments, or to show the Court how it ‘could have done it better’ the first time.”) (quoting Preserve Endangered Areas of Cobb's History v. United States Army Corps. of Eng'rs, 916 F. Supp. 1557, 1561 (N.D. Ga. 1995)); Crystal Commodore, 2009 U.S. Dist. LEXIS 135216, at *42 (denying motion for reconsideration of order awarding attorney's fees sanction where the plaintiff's motion reiterated arguments made at previous hearings and in responses to other motions).
*4 Finally, the undersigned notes that Plaintiff's motion is untimely. Under Local Rule 7.2E, a motion to reconsider must be filed with the clerk of court “within twenty-eight (28) days after entry of the order or judgment.” LR 7.2E, NDGa. The Court entered its Order awarding attorney's fees on November 1, 2018. (Doc. 62). Plaintiff filed his Motion Against Awarding Defense Attorney's Fee on December 3, 2018, four days after the deadline to file expired. (Doc. 62).
For the reasons above, it is RECOMMENDED that Plaintiff's “Motion Against Awarding Defense Attorney's Fees” (Doc. 68), construed by the Court as a motion for reconsideration, be DENIED.
II. Defendant's Third Motion For Sanctions (Doc. 69)
Defendant's Third Motion For Sanctions “seeks the dismissal of Plaintiff's lawsuit as a sanction for Plaintiff's failure to comply with his discovery obligations and this Court's orders.” (Doc. 69 at 1).
Defendant states as follows in its motion:
On December 3—three days after Plaintiff's responses were due—Defendant's counsel received a set of documents from Plaintiff[.] ... Along with this submission, Plaintiff provided Defendant 146 digital files and 39 pages of printed documents. This information included only one new document (a single Form W-2 for Averitt Express, Inc.) and a single new interrogatory response (a response to Interrogatory 16, which conflicts with information he provided previously). The remaining information was duplicative of Plaintiff's prior responses, copies of Defendant's subpoenas, and email communications between Plaintiff and counsel for Defendant. Thus, significant discovery deficiencies still remain.
(Doc. 69 at 3 (emphasis in original)). As previously noted, the Court ordered Plaintiff to file a response to Defendant's Third Motion For Sanctions by December 31, 2018. (Doc. 72 at 5). Plaintiff has not responded to Defendant's motion, and the time for doing so has passed. Defendant's motion is therefore unopposed under Local Rule 7.1B. See LR7.1B, NDGa (“Failure to file a response shall indicate that there is no opposition to the motion.”).
Under Local Rule 41.3(A)(2), NDGa, this Court “may, with or without notice to the parties, dismiss a civil case [ ] if ... [a] plaintiff ... shall, after notice, ... fail or refuse to obey a lawful order of the court in the case[.]” See Reece v. Lockheed Martin Aero. Co., Civil Action File No. 1:08-CV-3703-JTC-RGV, 2009 U.S. Dist. LEXIS 138388, at *11 (N.D. Ga. Nov. 4, 2009) (citing LR 41.3(A)(2), N.D. Ga.). However, dismissal of a case “is a sanction of last resort, applicable only in extreme circumstances, and generally proper only where less drastic sanctions are unavailable.” Eades v. Ala. Dep't of Human Res., 298 Fed. Appx. 862, 864 (11th Cir. 2008) (unpublished decision). A court may dismiss an action—whether on its own or on a party's motion— “only when: (1) a party engages in a clear pattern of delay or willful contempt (contumacious conduct); and (2) the district court specifically finds that lesser sanction would not suffice.” Betty K Agencies, LTD v. M/V Monada, 432 F.3d 1333, 1337-38 (11th Cir. 2005) (internal quotation omitted). Additionally, Rule 37(b) permits a trial court to dismiss an action “in whole or in part” if a party “fails to obey an order to provide or permit discovery[.]” FED. R. CIV. P. 37(b)(2)(A).
The Court finds that at this stage, the extreme remedy of dismissal is the only sanction sufficient given Plaintiff's willful failure to participate meaningfully in discovery or comply with the Court's orders. The undersigned has previously noted that “Plaintiff has evidence at least a minimal level of participation” by producing some responsive documents to Defendant, making himself available for deposition, and assisting Defendant with unlocking a USB memory card containing responsive document production. (Doc. 82 at 7; see also Doc. 46 at 2, 12 n. 8; Doc. 57-1; Doc. 42-7 at 1-2). In reviewing that conduct, the undersigned distinguished this case from Reece, 2009 U.S. Dist. LEXIS 138388, noting that while Plaintiff's conduct in this case was similar to Mr. Reece's conduct, Plaintiff did not evidence “a clear record of delay and contumacious conduct” as did Mr. Reece, who failed to make himself available for deposition, willfully ignored the court's orders, failed to confer under Rule 26, failed to respond to the defendant's requests for production of documents, and failed to supplement incomplete discovery responses. Id., 2009 U.S. Dist. LEXIS 138388, at *4. The Court therefore declined at that stage to dismiss this case in view of some indications in the record that Plaintiff might elect to meaningfully participate in discovery.
*5 Yet Plaintiff has continued to willfully disregard his discovery obligations and numerous Orders of this Court. Rather than recommending dismissal of Plaintiff's case for his failure to meet discovery deadlines and to respond fully to Defendant's interrogatories and document requests, the Court ordered him to supplement his inadequate discovery responses and to produce a copy of his diary to the Court for in camera review by November 15, 2018. (Doc. 62 at 40-41). On November 14, 2018, Plaintiff moved for a 21-day extension in order to permit him to retrieve a payroll document from a third-party company. (Doc. 64 at 1). As the record at that time did not suggest Plaintiff had complied with any of the Court's November 1 directives, the Court construed Plaintiff's motion as “a request to extend the time to respond for all the obligations imposed by the Court's November 1 Order.” (Doc. 66 at 2). The undersigned therefore extended Plaintiff's time to respond to “no later than November 30, 2018[.]” (Id. at 3). According to Defendant's assertions in the instant motion, Plaintiff produced some documents on December 3—four days after his responses were due according to the Court's extension. (Doc. 69 at 14). Defendant contends that this production is again incomplete, the document bundle composed almost entirely of duplicative material already produced aside from one new W-2 form, and a single new interrogatory response, which contradicted a previous response. (Id. at 3).[3] Aside from being untimely, Plaintiff's December 3 production represents a willful refusal to obey the Court's November 1 Order wherein the Court specifically directed Plaintiff to supplement his responses by producing documents responsive to Defendant's Requests for Production 1, 5, 7, 16, and 23 and full responses to Interrogatories 3, 5, 7, 10, and 16. (Doc. 62 at 41).
Further, Plaintiff has still not provided relevant portions of his diary to the Court for in camera review pursuant to the Court's November 1 Order. (Doc. 64 at 41). Plaintiff's most recent position is that he is unable to produce the diary because of technical issues. (See Doc. 67 at 9). However, Plaintiff's request for extension of time to comply with discovery obligations, filed on November 14, makes no mention of his inability to access his diary even though its production was initially required one day later pursuant to the November 1 Order. (See generally Doc. 64). Further, Plaintiff's deposition testimony, which initially revealed his possession of the potentially-discoverable diary, refers to the diary as a physical book in which he wrote notes. For instance, Plaintiff testified as follows:
A I added the note after I left the company.
...
A The reason I added the note was, in addition to my e-mails I have a book that I keep as my own note. Whenever I—whenever I meet, I was actually bringing the note for my reminder. So I would go back and added it.
...
Q So some of the e-mails you annotated at the time and some of them you went back and added later?
A From a book that I was keeping it as my—as my diary.
Q Okay
A Yes, every time when I send an e-mail I will notate it in my diary, the reason I sent it and what was the outcome and I will notate it. So I get from my book, my diary book, and I put it on the e-mail. So this was not something that I made up after I left. This was exactly from my diary book.
(See Doc. 57-1 (“Pl. Dep.”) at 83:1-84:12; see also id. 89:1-3, 90:16-19). Even if the Court credits Plaintiff's assertion that his diary is in electronic form and currently inaccessible, Plaintiff failed to raise the access issue until four days after the deadline for producing the diary, which presents further delay in resolving discovery issues. In fact, as the Court noted in the November 1 Order, Plaintiff's diary was directly responsive to Defendant's Request For Production Of Documents No. 11, 12, 14, and 19. (Doc. 64 at 31). Request No. 19 sought “every diary, journal, calendar or log that you maintained from your date of hire by [Defendant] until the present that relates to, refers to, or pertains to any of the allegations in your Complaint.” (Id.). As such, Plaintiff arguably has been due to produce his diary since January 12, 2018, the deadline for responding to Defendant's discovery requests agreed to by both parties in the January 2, 2018 teleconference before the undersigned. (Doc. 23 at 1; Doc. 62 at 2; see also Doc. 42 at 29 (email on January 16, 2018 from counsel for Defendant, addressed to Plaintiff, which attached discovery requests and noted that Plaintiff still had not responded by the January 12 deadline)). In short, Plaintiff's failure to produce his diary or to raise formatting issues with the document until nearly a year after its production was required represents an additional example of the pattern of delay and lack of active prosecution that Plaintiff has imposed on Defendant and the Court.
*6 Finally, the Court expressly ordered Plaintiff to respond to Defendant's Third Motion For Sanctions by December 31, 2018. (Doc. 72 at 5). The undersigned once again cautioned Plaintiff “that his failure to comply with this Order may result in the undersigned's recommendation to the District Judge that the case be dismissed.” (Id.). As Plaintiff has not filed a response, he has once again violated a discrete Order of the Court.
As set out above, the record demonstrates a pattern of delay and willful refusal to actively engage in the discovery process, respond to motions, or comply with the Court's Orders despite numerous warnings. (See Doc. 20 at 2; Doc. 32 at 6; Doc. 43 at 3; Doc. 62 at 26; Doc. 72 at 2). Plaintiff's conduct constitutes the type of “flagrant disregard and willful disobedience of discovery orders” forming the basis for dismissal under Rule 37. Roots v. Morehouse Sch. of Med., Inc., Civil Action No. 1:07-cv-00112-JOF, 2009 U.S. Dist. LEXIS 114141, at *8 (N.D. Ga. Dec. 8, 2009) (quoting U.S. v. Certain Real Property Located at Route 1, Bryant, Ala., 126 F.3d 1314, 1317 (11th Cir. 1997)). Additionally, Plaintiff's disregard of multiple orders of this Court provides a basis for dismissal under Rule 41(b) for lack of prosecution of his case. See Williams v. Worldplay United States, Inc., Civil Action File No. 1:15-cv-345-AT-JKL, 2016 U.S. Dist. LEXIS 186079, at *7-8 (N.D. Ga. Apr. 17, 2016) (recommending dismissal where the plaintiff failed to comply with four court orders, “offered no explanation for his disregard of those orders[,]” and failed to participate in discovery).
Further, the Court has contemplated lesser sanctions and finds that none would suffice. The Court has attempted to deter Plaintiff's conduct by awarding sanctions to Defendant in the form of attorney's fees (see Docs. 32 at 5-6; Doc. 62 at 29), and by issuing numerous explicit warnings and instructions to Plaintiff, including that further noncompliance may result in the undersigned's recommendation of dismissal to the District Judge. (See Doc. 20 at 2; Doc. 32 at 6; Doc. 43 at 3; Doc. 62 at 8; Doc. 66 at 3; Doc. 72 at 5). However, these measures have proven unsuccessful in stemming Plaintiff's pattern of untimeliness, delay, and noncompliance with his discovery obligations and with orders of the Court. Instead, Plaintiff “continues to provide discovery only when and as [he] sees fit” and the Court therefore “has no assurance that its discovery Orders have been fully complied with, or would ever be fully complied with.” Danubis Grp., LLC v. Landmark Am. Ins. Co., Case No. 6:14-cv-32-Orl-37DAB, 2015 U.S. Dist. LEXIS 27186, at *59 (M.D. Fla. Jan. 27, 2015). In short, the record of Plaintiff's conduct thus far provides no reason for the undersigned to believe that any additional sanctions short of dismissal would have any effect on Plaintiff's participation with discovery or his compliance with the Court's orders. The undersigned is therefore left to conclude that “less drastic sanctions are unavailable.” Eades, 298 Fed. Appx. at 864; see also Danubis Grp., 2015 U.S. Dist. LEXIS 27186, at *59 (dismissing case where as “sanction[ ] for discovery abuse” where “the Court has already imposed lesser sanctions to no effect”).
Having determined that Plaintiff's conduct forms the basis for the extreme sanction of dismissal under Rules 37(b), 41(b), and Local Rule 41.3, and “a lesser sanction would not suffice[,]” the undersigned finds that a recommendation of dismissal of Plaintiff's case to the District Judge is warranted. Betty K Agencies, 432 F.3d at 1338; see also Gratton v. Great Am. Communications, 178 F.3d 1373, 1375 (11th Cir. 1999) (affirming dismissal under Rules 37 and 41 based on the plaintiff's engagement “in behavior which interfered with the process of discovery[,]” “flouting of the district court's order[,]” and “unwillingness or inability to comply with the civil rules, ordinary and expected litigation procedures, and the orders of [the] court”); Eades, 298 Fed. Appx. at 864 (affirming dismissal of case where the plaintiff missed three separate deadlines and failed to notify the court of problems she was experiencing in complying with deadlines or in completing discovery); Goodman, 2006 U.S. App. LEXIS 9040, at *5 (affirming district court's dismissal under Rule 37(b) where plaintiff willfully failed to participate in discovery where the court “twice addressed the parties in an attempt to resolve the discovery disputes” and the plaintiff continued to “file[ ] motions on grounds that the district court had previously dismissed”); Cowe v. Equifax Credit Reporting, No. 1:09-cv-991-TWT-WEJ, 2010 U.S. Dist. LEXIS 21127, at *7 (recommending dismissal under Rule 41(b) for, inter alia, failing to respond to discovery requests and “ignor[ing] his responsibilities as a litigant” despite warnings that continued misconduct would result in a recommendation of dismissal), adopted by 2010 U.S. Dist. LEXIS 21126 (N.D. Ga. Mar. 8, 2010); Reece, 2009 U.S. Dist. LEXIS 138388, at *12 (dismissing case for want of prosecution where the plaintiff “has exhibited a pattern of willful delay in all aspects of this case[,]” ignored multiple court orders, and “has not meaningfully participated in the discovery process despite being made aware of his discovery obligations on numerous occasions”); Medrano v. American Home Mortg Servicing, No. 1:09-CV-1003-BBM-JFK, 2009 U.S. Dist. LEXIS 70869, at *4-5 (N.D. Ga. Aug. 12, 2009) (recommending dismissal where the plaintiff repeatedly failed to comply with court orders and the court's local rules despite being advised of the consequences, including dismissal of the complaint), adopted by 2009 U.S. Dist. LEXIS 70869 (N.D. Ga. Aug. 12, 2009).
*7 Accordingly, it is RECOMMENDED that Defendant's Third Motion For Sanctions (Doc. 69) be GRANTED and that Plaintiff's case be DISMISSED.
III. Defendant's Request For Reasonable Attorney's Fees (Doc. 69)
Finally, Defendant's Third Motion For Sanctions also asserts that it “has requested fees in the amount of $7,913.00 ($3,816 relating to Defendant's first motion for sanctions (Doc. 25) plus $4,097.00 relating to its second motion for sanctions (Doc. 41)).” (Doc. 69 at 15). Defendant seeks an order determining “the amount owed by Plaintiff[.]” (Id.). On February 16, 2018, the Court awarded attorney's fees because of Plaintiff's failure to respond fully to Defendant's discovery requests. (Doc. 32 at 5-6). Defendant was directed to present documentation of its request for reasonable fees, which totaled $3,816.00, and Plaintiff was directed to file a response. (Id. at 6). Pursuant to that Order, Defendant filed a declaration, prepared by defense counsel, which itemized the total fee amount requested on March 2, 2018. (See Docs. 41-1 and 41-2). Plaintiff was directed to file a response to Defendant's documentation by March 16, 2018 (see Doc. 32 at 6), but he did not do so.
On November 1, 2018, the Court entered another award of attorney's fees for Plaintiff's failure to comply fully with his discovery obligations. (Doc. 62 at 29). Along with its second motion for sanctions, Defendant submitted documentation of its fee request, including a declaration prepared by defense counsel and an itemization of time spent on the second motion for sanctions. (Doc. 42-9 at 1-6). Plaintiff was permitted to file a response to Defendant's statement of requested attorney's fees “no later than seven days after the entry of this Order.” (Doc. 62 at 29). The record indicates Plaintiff did not timely file any response to Defendant's statement of attorney's fees.[4]
In light of Defendant's documentation, which reveals reasonable rates and time expended, and Plaintiff's lack of timely opposition to the reasonableness of either of the award, the Court finds that Defendant is entitled to its requested amount of attorney's fees. See AMF Holdings, LLC v. Elie, Civil Action File No. 1:15-CV-3916-MHC-CMS, 2017 U.S. Dist. LEXIS 214095, at *7 (N.D. Ga. Oct. 11, 2017) (entering attorney's fee award where there was no opposition and “the requested amount is reasonable”).
Accordingly, it is RECOMMENDED that Defendant's motion for a total award of $7,913.00 in reasonable attorney's fees be GRANTED.
CONCLUSION
In light of the foregoing, it is RECOMMENDED that: Plaintiff's Motion Against Awarding Defense Attorney's Fees (Doc. 68) be DENIED; Defendant's Third Motion For Sanctions (Doc. 69) be GRANTED; Plaintiff's Complaint (Doc. 1) be DISMISSED; and Defendant be awarded $7,913.00 in reasonable attorney's fees.
*8 The Clerk is DIRECTED to terminate the reference of the above-captioned case.
SO REPORTED AND RECOMMENDED this 8th day of January, 2019.
Footnotes
Specifically, the Court ordered that Plaintiff provide full and complete responses to Defendant's Interrogatories 3, 5, 7, 10, and 16 and its Requests For Production Of Documents Nos. 1, 5, 7, 16, and 23. (Doc. 62 at 41).
As noted in the Court's February 16, 2018 Order, “Plaintiff may also subscribe to the Public Acess to Court Electronic Records (“PACER”) system and pay a user fee in order to ‘remotely access[ ] certain detailed case information, such as filed documents and docket sheets in civil cases[.]’ ” App. H – A25, Local Rules, NDGa.
Because Plaintiff has not responded to Defendant's Third Motion For Sanctions, the motion is unopposed, and he has failed to rebut these assertions. See LR 7.1B, NDGa.
Plaintiff's “Motion Against Awarding Defense Attorney's Fees” (Doc. 68), construed by the Court as a motion for reconsideration of the November 1, 2018 Order, was filed on December 3, 2018—long after his response to Defendant's documentation of its fees was due. Further, as explained more fully above, that motion lacks merit in arguing that Defendant was not entitled to an attorney's fee award. To the extent that motion represented Plaintiff's response to Defendant's documentation of its fees, it fails to convince the Court that Defendant is not entitled to the requested amount.