[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                       ________________________   ELEVENTH CIRCUIT
                                                                APR 27, 2010
                              No. 09-14490                       JOHN LEY
                          Non-Argument Calendar                    CLERK
                        ________________________

                   D. C. Docket No. 08-02566-CV-ECS-1

TONY L. KELLY,


                                                            Plaintiff-Appellant,

                                   versus

OLD DOMINION FREIGHT LINE, INC.,

                                                           Defendant-Appellee.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                               (April 27, 2010)

Before BLACK, PRYOR and FAY, Circuit Judges.

PER CURIAM:
       Tony L. Kelly, an African-American male proceeding pro se, appeals the

magistrate judge’s grant of defendant Old Dominion Freight Line, Inc.’s (“Old

Dominion”) motion to dismiss his complaint alleging racial discrimination and

retaliation, filed pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e-2(a)(1) and 2000e-3(a), as well as its orders imposing attorneys’ fees and

costs and denying his motion for reconsideration.1 On appeal, Kelly argues that the

magistrate denied him due process and abused his discretion in dismissing his

complaint pursuant to Fed.R.Civ.P. 37(d) and 41, ordering him to pay attorneys’

fees and costs, and denying his motion for reconsideration. For the reasons set

forth below, we affirm.

                                              I.

       Kelly brought suit against his employer, Old Dominion, asserting that Old

Dominion terminated his employment because of his race and as retaliation. He

also asserted claims of invasion of privacy, harassment, hostile work environment,

defamation, emotional distress, “possible violation[s] of [Georgia] public policy,”

and “possible hate crimes.”

       Kelly alleged that his home telephone number was changed in Old

Dominion’s computer database, causing him to miss work assignments. Various


       1
         Kelly and Old Dominion agreed to allow a magistrate judge to conduct all proceedings
in the case, including the entry of a final judgment.

                                               2
supervisors attempted to correct the phone number, but the changes were not

permanent. Eventually, Dean Scruggs, the Line Haul Manager, corrected the

problem, and Kelly had no further problems receiving calls for work. Kelly

requested an investigation into how his phone number was changed in the first

place. Kelly was informed that the phone number was changed because of a

computer glitch, but he continued to attempt to contact Old Dominion’s CEO about

the problem. Old Dominion subsequently terminated Kelly. Kelly stated that he

believed that Scruggs illegally changed his phone number in Old Dominion’s

database because Scruggs did not like that Kelly was in an interracial relationship

with a white woman.

      Old Dominion responded that Kelly’s complaint failed to state a claim upon

which relief could be granted, and it contended that it acted in good faith and based

on legitimate, non-discriminatory considerations.

      The magistrate issued a notice of “Guidelines for Discovery and Motion

Practice,” which stated that pro se litigants must observe the Federal Rules of Civil

Procedure, as well as the “District Court’s Local Rules and Instructions Regarding

Pretrial Proceedings.” The notice also stated in bold print that, pursuant to

Fed.R.Civ.P. 26(c) and 37, and N.D. Ga. Local Rule 37.1A, “[c]ounsel or pro se

litigants are required to confer, by telephone or in person, in good faith before



                                           3
bringing a discovery dispute to the court.”

      On October 31, 2008, Old Dominion separately filed its preliminary report

and discovery plan, and certificate of interested persons, noting that it had

attempted to confer with Kelly so that the documents could be filed jointly. In a

letter to Kelly, Brennan Bolt, Old Dominion’s counsel, noted that he had attempted

to contact Kelly to schedule a Rule 26(f) conference, but that Kelly’s wife had

informed him that Kelly would not be proceeding with the case until he received a

“recommendation” from the judge. Kelly subsequently filed his certificate of

interested persons, preliminary report, and discovery plan after the magistrate

judge ordered him to do so.

      On January 28, 2009, Kelly filed a motion to compel discovery, asserting

that Old Dominion had not responded to his January 5, 2009, discovery requests.

      Old Dominion responded that Kelly’s motion to compel was premature

because, pursuant to the Federal and Local Rules of Civil Procedure, it had 33 days

in which to respond to Kelly’s discovery requests. It also asserted that Kelly’s

motion did not comply with Fed.R.Civ.P. 37(a)(1) and Local Rule 37.1(A) because

Kelly had not filed a certificate of service with the court, had not conferred in good

faith with Bolt prior to filing the motion to compel, and had not certified that he

attempted, in good faith, to confer with Bolt. A January 22, 2009, letter addressed



                                           4
to Kelly stated that Old Dominion had received Kelly’s discovery requests and

would respond by February 9, 2009, the deadline provided by the Federal and

Local Rules.

      On February 11, 2009, Kelly filed a second motion to compel discovery,

asserting that Old Dominion had refused to answer his discovery requests.

      Old Dominion responded that, on February 9, 2009, it served its objections

and responses to Kelly’s discovery requests via U.S. Mail. A certificate of service

filed with the court verified this. Old Dominion noted that Kelly again had made

no effort to confer with Bolt regarding discovery and had failed to certify that he

made such an effort. Old Dominion asked the court to deny Kelly’s motion to

compel and award costs and attorneys’ fees incurred in opposing Kelly’s motion to

compel.

      On March 27, 2009, Old Dominion filed a motion to dismiss, or, in the

alternative, to compel production of documents and impose sanctions. It explained

that, in addition to Kelly’s previous discovery violations, Kelly had failed to

respond to its request for production of documents, which it served on Kelly on

January 29, 2009, by the March 3, 2009, deadline. Old Dominion stated that Bolt

left voice mails for Kelly on March 9, 10, and 12, 2009, but that Kelly never

responded. On March 13, 2009, Bolt sent Kelly a letter noting the March 3



                                           5
discovery deadline and informing Kelly of the March 9, 10, and 12 voice mails.

The letter, which was delivered to Kelly on March 16, 2009, asked Kelly to contact

Bolt by March 18, 2009. Old Dominion noted that, on March 20, it requested a

conference with the court to resolve the discovery dispute. On March 24, 2009, the

court advised Old Dominion that Kelly “refused to participate in a telephone

conference because of a ‘conflict of interest.’”

      The magistrate denied Kelly’s motions to compel because Kelly failed to

certify that he attempted to confer with Old Dominion to obtain the requested

discovery and failed to engage in any good faith effort to resolve the dispute before

filing his motion. The magistrate further found that both of Kelly’s motions to

compel lacked merit because the first motion was filed before Old Dominion’s

deadline to respond and the second motion was signed one day after Old Dominion

had served its objections and responses to Kelly’s discovery requests. Pursuant to

Fed.R.Civ.P. 37(a)(5)(B), the magistrate awarded Old Dominion reasonable

expenses, including attorneys’ fees, for the expenses incurred in opposing Kelly’s

meritless motions to compel. Although the magistrate found that Kelly willfully

failed to participate in discovery and comply with the court’s rules, it determined

that “dismissal is not yet an appropriate sanction.” It ordered Kelly to respond to

Old Dominion’s first request for production of documents and warned that “the



                                           6
failure to comply with this order or any other failure to comply with his discovery

obligations as delineated in the Federal Rules of Civil Procedure will subject

[Kelly] to additional sanctions, including the dismissal of this case.”

      Kelly filed certificates of service stating that, on May 26 and 30, 2009, and

June 3, 2009, he served, via U.S. Mail, responses to Old Dominion’s first request

for production of documents.

      Old Dominion sought to depose Kelly, and, on June 23, 2009, Kelly filed a

motion in opposition to Old Dominion’s notice of deposition, asserting that Old

Dominion had scheduled his deposition simply to harass him and had not

demonstrated a need for the deposition. He asked the court to enter an order

protecting him from the deposition.

      On June 30, 2009, Old Dominion filed a motion to dismiss and to impose

sanctions, or, in the alternative, to compel production of documents. It explained

that, on June 3, 2009, Bolt wrote to Kelly requesting that Kelly contact him

regarding his availability for the deposition. Kelly never responded, and, on

June 12, 2009, Old Dominion unilaterally noticed Kelly’s deposition for

June 25, 2009, at 10:00 a.m. Bolt faxed and mailed the notice to Kelly. Upon

receiving Kelly’s motion for a protective order, Bolt faxed Kelly a letter stating

that Kelly was required to appear at his deposition unless the court granted his



                                           7
request for a protective order. On June 25, 2009, Bolt and a representative of Old

Dominion appeared for Kelly’s deposition. Kelly did not appear, did not respond

to a voice mail, and did not attempt to contact Bolt. Old Dominion asked the court

to dismiss Kelly’s complaint with prejudice and award reasonable attorneys’ fees

and expenses.

      Kelly filed a motion for summary judgment, but did not respond to Old

Dominion’s motion to dismiss.

      The magistrate granted Old Dominion’s motion to dismiss, noting that the

motion was unopposed. It found that dismissal was warranted based on Kelly’s

willful violations, namely, his (1) refusal to participate in a Rule 26(f) conference

until instructed to do so at a November 24, 2008, scheduling conference; (2) filing

of his first motion to compel before the deadline for submitting discovery

responses and without making any effort to confer with Old Dominion; (3) filing of

a second motion to compel without attempting to confer with Old Dominion;

(4) failure to respond to Old Dominion’s first request for discovery; (5) failure to

return Bolt’s phone calls regarding his responses to Old Dominion’s written

discovery; (6) failure to respond to Bolt’s March 13 letter regarding Kelly’s failure

to serve discovery responses; (7) refusal to participate in a telephone conference

with the court to resolve discovery disputes; (8) filing of a frivolous motion for a



                                           8
protective order to avoid being deposed; (9) failure to confer with Old Dominion

before filing the motion for the protective order; and (10) failure to appear for his

deposition. It dismissed Kelly’s complaint after finding that lesser sanctions were

inadequate, based on Kelly’s “clear violations of the Federal Rules in the wake of

th[e] court’s prior application of lesser sanctions and explicit warning that further

violations could result in dismissal.” The magistrate also awarded Old Dominion

reasonable expenses and attorneys’ fees, pursuant to Fed.R.Civ.P. 37(a)(3), noting

that Kelly had not responded to Old Dominion’s motion for sanctions and there

was no evidence of mitigating circumstances that would make an award of

expenses unjust.

      Kelly filed multiple copies of a “motion letter of appeal,” in which he asked

the court to reconsider its dismissal of his case, hold an “in-person conference,”

and allow him to submit a response to Old Dominion’s motion to dismiss. He

contended that the court was biased in favor of Old Dominion and did not consider

any of the facts he submitted during discovery. Kelly asserted that he had

proceeded with discovery in good faith and fully cooperated with Old Dominion

and the court.

      The magistrate construed Kelly’s “motion letter of appeal” as a motion for

reconsideration. It denied the motion, finding that Kelly “has not offered any new



                                           9
evidence, nor has he pointed to a development or change in controlling law, nor a

clear error in the Court’s judgment.”

                                           II.

      A.     Dismissal

      We review dismissals under Fed.R.Civ.P. 37 and 41 for abuse of discretion.

Gratton v. Great Am. Communications, 

, 1374 (11th Cir. 1999). The

district court’s factual findings are reviewed for clear error. Zocaras v. Castro, 

, 483 (11th Cir. 2006). Although pro se pleadings are to be construed

liberally, “procedural rules in ordinary civil litigation” should not be interpreted

“so as to excuse mistakes by those who proceed without counsel.” McNeil v.

United States, 

, 113, 

, 1984, 

(1993).

      Under Rule 37(a)(5)(B), if a motion for an order compelling discovery is

denied, the district court “must, after giving an opportunity to be heard, require the

movant . . . to pay the party or deponent who opposed the motion its reasonable

expenses incurred in opposing the motion, including attorney’s fees,” unless “the

motion was substantially justified or other circumstances make an award of

expenses unjust.” Fed.R.Civ.P. 37(a)(5)(B). Pursuant to Rule 37(d), a court may

sanction a party who, after being served with proper notice, fails to appear for his

deposition. Fed.R.Civ.P. 37(d)(1)(A)(i). Dismissal of the action is listed as an



                                           10
appropriate sanction for the party’s failure to appear for the deposition.

Fed.R.Civ.P. 37 (d)(3), (b)(2)(A)(v). “[T]he sanction of dismissal is a most

extreme remedy and one not to be imposed if lesser sanctions will do.” Hashemi v.

Campaigner Publ’ns, Inc., 

, 1538-39 (11th Cir. 1984) (upholding

dismissal pursuant to Fed.R.Civ.P. 37(d)). However, “the district court retains the

discretion to dismiss a complaint where the party’s conduct amounts to flagrant

disregard and willful disobedience of the court’s discovery orders.” 

(quotation omitted); see Griffin v. Aluminum Co. of Am., 

, 1172 (5th

Cir. 1977) (noting that the former Fifth Circuit “has approved dismissal as a

sanction imposed under Rule 37(d), [where] plaintiff’s failure to comply with

discovery has involved either repeated refusals or an indication of full

understanding of discovery obligations coupled with a bad faith refusal to

comply”). The district court’s inaction on a party’s motion for a protective order to

postpone the taking of his deposition does not relieve the party of the duty to

appear for the deposition. Hepperle v. Johnston, 

, 613 (5th Cir.

1979).

         Under Rule 41(b), “[a] district court is authorized, on defendant’s motion, to

dismiss an action for failure to prosecute or to obey a court order or federal rule.”

Goforth v. Owens, 

, 1535 (11th Cir. 1985). “Dismissal of a case



                                            11
with prejudice is considered a sanction of last resort, applicable only in extreme

circumstances.” 

a dismissal under Rule 41(b), we consider

“whether there is a clear record of delay or willful contempt and a finding that

lesser sanctions would not suffice.” 

Mere negligence or

confusion is not sufficient to justify a finding of delay or willful misconduct.

McKelvey v. AT&T Techs., Inc., 

, 1520-21 (11th Cir. 1986).

Dismissal pursuant to Rule 41(b) “upon disregard of an order, especially where the

litigant has been forewarned, generally is not an abuse of discretion.” Moon v.

Newsome, 

, 837 (11th Cir. 1989).

      The magistrate did not abuse his discretion in dismissing Kelly’s complaint

under either Rule 37(d) or 41(b). Kelly committed numerous discovery violations.

First, Kelly filed a motion to compel before Old Dominion’s deadline for

producing its discovery documents. If Kelly had complied with the federal and

local rules by consulting with Old Dominion before filing his motion to compel, he

would have learned that Old Dominion was planning to produce the documents and

had until February 9, 2009, to do so. Kelly should have been aware of his duty to

confer because the “Guidelines for Discovery and Motion Practice,” issued by the

court at the beginning of proceedings, stated in bold print that, pursuant to

Fed.R.Civ.P. 26(c) and 37, and Local Rule 37.1A, “[c]ounsel or pro se litigants are



                                          12
required to confer, by telephone or in person, in good faith before bringing a

discovery dispute to the court.” Furthermore, Kelly’s motion to compel did not

contain a certification that Kelly had attempted, in good faith, to resolve the

dispute with Old Dominion. Fed.R.Civ.P. 37(a)(1) requires motions to compel to

contain such a certification, and Kelly’s pro se status does not excuse non-

compliance with procedural rules. See Fed.R.Civ.P. 37(a)(1) (requiring that a

motion to compel discovery “include a certification that the movant has in good

faith conferred or attempted to confer with the person or party failing to make

disclosure or discovery in an effort to obtain it without court action”); 

, 113 S.Ct. at 1984.

      Kelly’s second motion to compel was also deficient and meritless because

Kelly did not confer with Old Dominion to resolve the discovery dispute or include

a certification in his motion, and Old Dominion had, in fact, served its discovery

requests by the February 9, 2009, deadline. See Fed.R.Civ.P. 5(b)(2)(C)

(providing that “service [by mail] is complete upon mailing”).

      In addition to filing two deficient and meritless motions to compel, Kelly

also failed to file timely responses to Old Dominion’s request for production of

documents. In a March 13, 2009, letter, Bolt informed Kelly that his discovery

responses were due on March 3, 2009. Although Kelly contends that he never



                                          13
received this letter, a Federal Express receipt indicates that the letter was delivered

to Kelly’s residence on March 16, 2009. Kelly also contends that he did not

receive Old Dominion’s discovery requests until April 23, 2009, but he failed to

raise this issue before the magistrate because he did not respond to Old Dominion’s

motion to dismiss prior to the district court’s order of dismissal, which was entered

almost two months after the filing of Old Dominion’s motion.

      In spite of Kelly’s numerous discovery violations, the magistrate denied Old

Dominion’s first motion to dismiss, finding that dismissal was not yet warranted.

The magistrate warned Kelly that he was required to comply with the Federal

Rules of Civil Procedure, and that failure to do so would result in additional

sanctions, “including the dismissal of this case.” After receiving this warning,

Kelly failed to respond to Bolt’s requests to schedule his deposition and failed to

report for his deposition on June 25, 2009. In a letter that Old Dominion faxed to

Kelly, Old Dominion informed Kelly that he was required to attend the deposition

unless the court granted Kelly’s motion for a protective order before the date of the

deposition, which the court did not do. Case law confirms that the filing of a

motion for a protective order does not shield a party from his duty to appear for his

deposition. See 

. Furthermore, Kelly never attempted to

confer with Old Dominion before filing his motion in opposition to the deposition.



                                           14
See Fed.R.Civ. P. 37(a)(1).

      Although Kelly contends that his repeated discovery violations were not

willful, his failure to cooperate with Old Dominion to resolve discovery disputes

indicates that Kelly’s violations were willful, and that he made no good faith

attempt to learn the rules, comply with the rules, or correct his errors. Thus, the

magistrate did not clearly err in determining that Kelly’s failure to appear at his

deposition was willful. See 

. Although dismissal is an

extreme sanction, Kelly had been warned that his case could be dismissed if he

continued to violate the Federal Rules of Civil Procedure. After the magistrate

issued this warning, Kelly failed to appear for his deposition or confer with Old

Dominion before filing his motion for a protective order. In dismissing Kelly’s

case, the magistrate specifically found that no sanction less than dismissal would

suffice, given that Kelly continued to violate the rules after being warned. This

determination is not clearly erroneous and justifies the dismissal of Kelly’s

complaint. See 

; 

.

      B.     Due Process

      Kelly also has failed to show that the magistrate denied him due process by

dismissing his complaint. At the outset of the proceedings, the magistrate issued a

notice informing the parties that they were required to comply with the Federal



                                           15
Rules of Civil Procedure. Later, the magistrate warned Kelly that his complaint

could be dismissed if he continued to violate the rules, but Kelly subsequently

violated the rules by failing to appear for his deposition. Furthermore, the

magistrate’s dismissal was not based solely on Old Dominion’s allegations, but

instead, was based on the record, which showed that (1) Kelly’s first motion to

compel was filed prior to Old Dominion’s deadline for responding; (2) Kelly’s

second motion to compel was filed 2 days after Old Dominion served its discovery

responses; (3) Kelly’s motions to compel failed to comply with requirements set

forth in Fed.R.Civ.P. 37(a)(1); and (4) Kelly failed to respond to Old Dominion’s

discovery requests within 30 days of receiving the requests. Kelly also did not

dispute Old Dominion’s assertion that he failed to appear for his deposition.

Because Kelly was warned of the consequences of failing to comply with the rules,

and because the record objectively showed that Kelly committed numerous

discovery violations, Kelly’s due process rights were not violated by the dismissal

of his complaint.

      C.     Attorneys’ Fees and Costs

      A district court’s award of attorneys’ fees pursuant to Fed.R.Civ.P. 37 is

reviewed for abuse of discretion. See BankAtlantic v. Blythe Eastman Pain

Webber, Inc., 

, 1052 (11th Cir. 1994). As noted previously, the



                                          16
district court may sanction a party who fails to appear for his properly-noticed

deposition. See Fed.R.Civ.P. 37(d)(1)(A)(i). In addition to, or instead of,

sanctions, “the court must require the party failing to act . . . 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)(3) (emphasis added).

      Kelly asserts on appeal that the magistrate erred in awarding Old Dominion

attorneys’ fees and costs. To the extent that Kelly challenges the award of

attorneys’ fees and costs based on the magistrate’s denial of his motions to compel,

Kelly’s argument lacks merit. Kelly appears to challenge only the award of the

fees, not the amount of the fees. The magistrate did not abuse its discretion in

ordering Kelly to pay attorneys’ fees and costs incurred by Old Dominion in

opposing Kelly’s motions to compel. As noted previously, Kelly’s motions to

compel were both meritless and failed to comply with the procedural rules.

Moreover, prior to the magistrate’s order awarding fees and costs, Kelly failed to

present any mitigating circumstances that would make the award of fees unjust.

Thus, this Court sustains this award of attorneys’ fees and costs.

      The magistrate also did not abuse its discretion in awarding Old Dominion

attorneys’ fees and costs based on Kelly’s failure to appear for his deposition.



                                           17
Rule 37 requires the award of attorneys’ fees and costs that are incurred as a result

of a party’s failure to appear for his deposition, unless the failure to appear was

justified or other circumstances would make the award unjust.

See Fed.R.Civ.P. 37(d)(3). As noted above, Kelly failed to show that his absence

at his deposition was justified. In addition, Kelly failed to respond to Old

Dominion’s motion for attorneys’ fees and costs, and, therefore, failed to present

any circumstances that would make an award of costs unjust. Thus, the magistrate

did not abuse its discretion in awarding the fees.

      D.     Motion to Reconsider

      We review for abuse of discretion a district court’s denial of a motion to

reconsider. Corwin v. Walt Disney Co., 

, 1254 (11th Cir. 2007 ).

      A review of the record shows that the magistrate did not abuse its discretion

in denying Kelly’s motion for reconsideration because Kelly failed to present any

additional evidence, or otherwise show that relief from judgment was justified,

and, as noted above, the magistrate properly dismissed Kelly’s complaint.

See 

; Fed.R.Civ.P. 60(b). Accordingly, based on our

review of the record and consideration of the parties’ briefs, we affirm the

magistrate’s dismissal of Kelly’s complaint, imposition of attorneys’ fees and

costs, and denial of his motion to reconsider.

      AFFIRMED.

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