*1 This matter appears before the Court on the January 8, 2019 Final Report and Recommendation (“R&R”) issued by the Honorable J. Clay Fuller, United States Magistrate Judge. Doc. No. [74]. In the R&R, Judge Fuller recommended that Plaintiff's Motion Against Awarding Defense Attorney's Fee (Doc. No. [68]) be denied and that Defendant's Third Motion for Sanctions (Doc. No. [69]) be granted.

The facts and procedural history are found in the R&R and are incorporated by reference. Doc. No. [74].

Plaintiff has filed a “response” to the R&R, which the Court construes as objections. Doc. No. [76]. Defendant has also filed a response to Plaintiff's objections. Doc. No. [77].

When objections are filed in the context of a dispositive motion, the Court must “make a de novo determination of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). After conducting this review, the Court “may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge.” Id. Additionally, the Court may “receive further evidence or recommit the matter to the magistrate judge with instructions.” Id.

The Court will address each of Plaintiff's objections in turn. In his objections, Plaintiff expresses a belief that his case has been recommended for dismissal prematurely and that the “most difficult[ ] aspect of [his] case has been convincing the judge that the defense attorney is using the federal discovery rules mischievously.” Doc. No. [76], pp. 2, 10. Plaintiff also expressed a belief that he has not “been given fair treatment” in the ongoing litigation in that all of his “motions have been denied without reasonable explanation.” Id. at p. 12. Plaintiff states that “any motion that the defense attorney requested was granted [and] Defense attorney was never held accountable [for] any discovery violation, misleading, or discovery rule misconduct he committed.” Doc. No. [76], pp. 10, 12. More specifically, Plaintiff states that Defense Counsel has refused to acknowledge him, attacked him verbally, behaved unprofessionally, and continued to file frivolous motions and subpoenas. Id. at pp. 12–14. Plaintiff further states that Defense Counsel “was asking information that was impossible to produce, such as getting [a] document from a company that no longer exist.” Id. at p. 14.

Plaintiff also states that he was given a schedule that “guaranteed ... failure” and cited as an example his being served with documents by United States mail, which took three to four days to receive and left him with ten days to respond. Id. at p. 15. As another example, Plaintiff indicates that he tried the method of requesting a conference with the Magistrate Judge, pursuant to the Court's rule, but was denied. Id. at p. 11.

Lastly, Plaintiff asserts a belief that the Magistrate Judge “might have been angered by [Plaintiff's] attempt to reach out to chief judge.” Id. at p. 15.

Defendant, through Counsel, has filed a response in opposition to Plaintiff's objection. Doc. No. [77].

*2 After de novo review, the Court concludes that the R&R “is correct in law and fact”—and is accepted by this Court. Griffin v. GMAC, No. 1:05-CV-0199, 2008 WL 11334068, at *1 (N.D. Ga. Mar. 5, 2008).

The Court is unable to uphold Plaintiff's unfair treatment arguments as a review of the record shows that each of the Magistrate Judge's decisions in which Plaintiff's motions were denied (or Defendant's motions were granted) were based on detailed findings of fact, citations of applicable and persuasive authority, and well-reasoned explanations. The fact that the rulings were unfavorable to Plaintiff does not show unfair treatment. Cf. Draper v. Reynolds, 369 F.3d 1270, 1279 (11th Cir. 2004) (“The United States Supreme Court has instructed that ‘judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.’ ”) (citations omitted). There is also nothing to show that the Magistrate Judge's rulings were based on being angered by Plaintiff contacting the Chief Judge. The Court further finds that even if the Magistrate Judge declined to schedule a conference call at Plaintiff's request, it was not an abuse of discretion, as Plaintiff still could have made his arguments known to the Magistrate Judge by filing responses to the pending motions for sanctions.[1] Lastly, the Eleventh Circuit Court of Appeals has in a prior case, rejected a plaintiff's violation of rights argument based on postal mail service of court documents and denial of access to electronic filing on CM/ECF. Cf. Blackston v. Ala., 188 F. App'x 803 (11th Cir. 2006). This Court does likewise.

Plaintiff also makes a number of arguments, asserting misconduct and unprofessionalism on the part of Defense Counsel. Doc. No. [76]. In response to Plaintiff's objection/arguments, Defendant, through Counsel, states that Plaintiff is attempting to obscure (and misstate) the true events. Doc. No. [77], p. 9. Defendant further states: “[i]n fact, Defendant's counsel has acknowledged all discovery Plaintiff has provided, and accepted all deliveries made by Plaintiff (one in-person, and the others by mail). Defendant has also repeatedly acknowledged that it received many documents from Plaintiff —including the 450 pages that he references in his Objections. Despite such productions, Plaintiff has ignored many discovery requests and simply not responded fully. To this day, his responses [are] incomplete.” Doc. No. [77], p. 10.[2]

*3 Defense Counsel also noted that “Plaintiff has also previously filed a Motion to Sanction Defense Attorney for Deposition Misconduct (Doc. No. [53]), in which he made some of the same claims .... and [t]he Magistrate Judge denied his motion. Doc. No. [77], p. 6 (citing Doc. No. [62], at 37–38).

After review, it appears that the essence of Plaintiff's argument is based upon the same acts/conduct raised in Plaintiff's Motion to Sanction Defense Attorney for Deposition Misconduct (Doc. No. [53]), which the Magistrate Judge denied on November 1, 2018 and which Plaintiff did not file timely objections (within fourteen days of the service of the order) pursuant to Federal Rule of Civil Procedure 72. Doc. No. [62]. In the absence of timely objection, the Court will not reconsider the Magistrate Judge's ruling in the context of the pending objections. See Fed. R. Civ. P. 72(a) (“A party may not assign as error a defect in the order not timely objected to. “). As for the asserted Defense Counsel conduct that was not subject to the prior Motion to Sanction Defense Attorney for Deposition Misconduct (Doc. No. [53]), the Court is unable to find that Plaintiff has demonstrated that Defense Counsel misled the Magistrate Judge as to documents received and missing. In fact, Defendant's third motion for sanctions (Doc. No. [69]) details Defendant's asserted discovery deficiencies. See e.g., Doc. No. [69], pp. 2–12.

Finally, the Court addresses Plaintiff's arguments regarding his financial difficulties and ability to pay. Doc. No. [76], p. 15.

It has been held that “[t]he ability of a party to pay is one factor a court should consider when imposing sanctions. Circuits that have addressed this issue have held the sanctioned party has the burden to produce evidence of inability to pay. Simple logic compels this result: the sanctioned party knows best his or her financial situation .... [T]he sanctioned party, ha[s] the burden to produce probative evidence of his inability to pay the sanctions.” Gaskell v. Weir, 10 F.3d 626, 629 (9th Cir. 1993).

As it was Plaintiff's burden to produce evidence of his inability to pay and Plaintiff who failed to timely respond to the Magistrate Judge's orders regarding said sanctions (Doc. No. [74], pp. 19–20),[3] Plaintiff's objection are overruled as even in his objection, Plaintiff does not present evidence that shows that he has an inability to pay the recommended attorney fee sanctions.

As stated in the R&R, “[t]he 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.” Doc. No. [74], p. 11. “Further, the Court has contemplated lesser sanctions and finds that none would suffice.” Id. at p. 16.

In conclusion, the January 8, 2019, Final Report and Recommendation (Doc. No. [74]) is ADOPTED as the Order of the Court. Plaintiff's objections (Doc. No. [76]) are OVERRULED.

*4 Plaintiff's Motion Against Awarding Defense Attorney's Fees (Doc. No. [68]) is DENIED.

Defendant's Third Motion for Sanctions (Doc. No. [69]) is GRANTED. The Court imposes the sanctions of dismissal of Plaintiff's Complaint and attorney's fees. Accordingly, Plaintiff's Complaint (Doc. No. [1]) is DISMISSED WITH PREJUDICE and Defendant is awarded $7,913.00 in reasonable attorney's fees.

IT IS SO ORDERED this 6th day of August, 2019.