Filed: Aug. 19, 2020
Latest Update: Aug. 19, 2020
Summary: Case: 19-13280 Date Filed: 08/19/2020 Page: 1 of 14 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-13280 Non-Argument Calendar _ D.C. Docket No. 3:15-cv-01449-BJD-MCR LANDON L. WILLIAMS, Plaintiff-Appellant, versus BANK OF AMERICA CORPORATION, MERRILL, LYNCH, PIERCE, FENNER & SMITH INCORPORATED, Defendants-Appellees, MERRILL EDGE ADVISORY CENTER, et al., Defendants. _ Appeal from the United States District Court for the Middle District of Florida _ (Augu
Summary: Case: 19-13280 Date Filed: 08/19/2020 Page: 1 of 14 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-13280 Non-Argument Calendar _ D.C. Docket No. 3:15-cv-01449-BJD-MCR LANDON L. WILLIAMS, Plaintiff-Appellant, versus BANK OF AMERICA CORPORATION, MERRILL, LYNCH, PIERCE, FENNER & SMITH INCORPORATED, Defendants-Appellees, MERRILL EDGE ADVISORY CENTER, et al., Defendants. _ Appeal from the United States District Court for the Middle District of Florida _ (Augus..
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Case: 19-13280 Date Filed: 08/19/2020 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13280
Non-Argument Calendar
________________________
D.C. Docket No. 3:15-cv-01449-BJD-MCR
LANDON L. WILLIAMS,
Plaintiff-Appellant,
versus
BANK OF AMERICA CORPORATION,
MERRILL, LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
Defendants-Appellees,
MERRILL EDGE ADVISORY CENTER, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 19, 2020)
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Before WILLIAM PRYOR, Chief Judge, LAGOA, and ED CARNES, Circuit
Judges.
PER CURIAM:
Landon L. Williams brought an employment discrimination suit against his
former employers Merrill, Lynch, Pierce, Fenner & Smith, Incorporated and Bank
of America Corporation (the defendants). After he failed to submit to a
court-ordered deposition, the district court dismissed his suit under Fed. R. Civ. P.
41(b). This is his appeal.
I.
Williams, a 51-year old African American man, was employed by Merrill
Lynch as a Financial Solutions Advisor. Merrill Lynch terminated him from that
position after approximately 13 months. Williams filed a pro se lawsuit in the
Middle District of Florida against Merrill Lynch and Bank of America, as the
owner of Merrill Lynch, raising claims under the Fair Labor Standards Act
(FLSA), Title VII of the Civil Rights Act of 1964 (Title VII), and 42 U.S.C.
§ 1981. The district court ultimately dismissed all but two claims: one FLSA claim
against Merrill Lynch alleging unpaid overtime and one § 1981 claim against Bank
of America alleging pay discrimination.
The defendants deposed Williams on the two remaining claims. At the
deposition, Williams repeatedly evaded questions and engaged in long narratives
that were not responsive to the questions. Defense counsel called a magistrate
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judge to complain about Williams’ conduct and expressed concern that they would
not be able to finish their questions by the end of the day. 1 Counsel also told the
1
One of Williams’ responses was read to the magistrate judge as an example of the type of
evasive and long-winded answers he was giving. This is that part of the deposition transcript:
QUESTION: Mr. Williams, are you familiar with the MEAC [Merrill Edge Advisory Center]
Spanish?
ANSWER: Absolutely I do know what that is.
QUESTION: Can you explain to me what the MEAC Spanish is?
ANSWER: African Americans were subjected to --
QUESTION: Mr. Williams, my question is, what is the MEAC Spanish? Just tell me what
the role of MEAC Spanish is.
ANSWER: If we’re going to have courtesy, if we’re going to have a good deposition, and I’m
attempting --
QUESTION: We’re going to be here a very long time.
ANSWER: You have got to -- patience is not only a virtue, but it is a requirement that I impose
on anyone who asks me a question, and you’re not courteous. I’m trying to answer your question
and you’re interrupting me. This -- you know, this is not a federal investigation. This is a
deposition and I’m attempting to answer the question.
QUESTION: Then answer the question.
ANSWER: I’m going to answer the question. Thank you. African Americans-- and I happen to
be a member of that racial community -- were subjected to benefits and terms, privileges of
employment that were far more stringent, burdensome, and unfair as compared to our non
African American counterparts. With that being said, I and other African American financial
solutions advisors were required to field calls from Spanish only speaking customers of Bank of
America Corporation/Merrill Lynch; whereas, my non African American counterparts enjoyed
receiving English only calls, that they were able to convert those calls either to sales or to take
care of a routine question and move on to the next customer. Whereas, if you had the Spanish
Merrill Edge Advisory Center [queue], you couldn’t just move on. Because of Merrill Lynch and
Bank of America Corporation’s legacy of racial discrimination, there were not efforts to retain an
appropriate level of Spanish speaking or colleagues who were of a Spanish ancestry to be able to
facilitate the overwhelming number of calls that came from Spanish only customers. And so the
Spanish MEAC [queue] was that [queue] that was set up on my phone, whereby, during my
workday, I would receive these calls and could not communicate with these individuals and
would have to keep these individuals on hold till I was able to talk to -- at the time there w[ere]
only two, to my knowledge, there were only two colleagues who spoke fluent Spanish and were
intelligent enough to communicate in Spanish about services of Bank of America Corporation
and Merrill Lynch. Then I think it moved from only two people to only one person, and he was a
gentleman who was assigned to the Premier segment and he was blitzed with calls that were
waiting in [queue]. He continuously put customers on hold to tell you to stay on hold. And so
that is my knowledge of the Spanish MEAC. It was a [queue] specifically for those individuals
who did not speak fluent English.
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judge that Williams had addressed the female defense counsel as “little lady” and
referred to the male defense counsel as an “elitist” and an “idiot.” The magistrate
judge advised Williams of the proper conduct for a deposition and directed him to
provide succinct answers to the questions. The judge then asked Williams if he
would return for a follow-up deposition and Williams confirmed that he had “no
problem” coming back and “they can depose me for whatever time frame. . . .” At
5:00 p.m., after approximately six hours on the record, counsel asked Williams if
he would agree to continue the deposition because they had not finished their
questions. Williams agreed.
The defendants scheduled a follow-up deposition for June 12, 2018. When
Williams informed the defendants that he would appear only for one hour and only
to answer questions relating to damages, the defendants filed a motion asking the
magistrate judge to order him to sit for an additional four hours of deposition. 2
Williams responded that the defendants’ motion must be denied because
they failed to attach a memorandum of law, which violated Middle District of
Florida Local Rule 3.01(a). 3 He also argued that his initial deposition had taken
2
A magistrate judge initially granted the motion and Williams agreed to appear for his
deposition on June 29, 2018. Williams then moved to vacate that order, which the district court
did because the magistrate judge had not allowed sufficient time for Williams to file a response.
3
Rule 3.01(a) provides “in a motion or other application for an order, the movant shall include a
concise statement of the precise relief requested, a statement of the basis for the request, and a
memorandum of legal authority in support of the request, all of which the movant shall include
in a single document not more than twenty-five (25) pages.” M.D. Fla L. R. 3.01(a).
4
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seven-and-a-half hours, and the defendants had been unable to complete it, not
because his answers had been evasive and obstructive, but because defense counsel
had a plane to catch.
At the hearing on the motion, the defendants pointed out that Williams had
agreed on the record to being deposed again. And they argued there had been
good cause to continue the deposition initially because not only had Williams’
conduct necessitated the need for a follow-up deposition, but he had submitted an
additional 1,500 pages of discovery after they had filed the motion to compel him
to sit for four more hours of deposition. The defendants argued that their failure to
include a memorandum of law with the motion was inadvertent. Williams
responded that the defendants had questioned him on “nonsensical” issues and
“wasted a lot of [their] time” by asking irrelevant questions such as where he lived,
his criminal history, and whether he was married. He denied agreeing to continue
the deposition.4
4
Even his denial that he had agreed to be deposed again was evasive and long-winded, as shown
by the following exchange:
THE COURT: . . . Mr. Williams, at the time when defense counsel filed that motion, it is correct
that you indicated during that deposition that you would be willing to come in for an additional
deposition, correct?
MR. WILLIAMS: That is not correct. There was a stipulation during a rest room break in which
I agreed to allow -- because we had a couple of countervailing forces that the Court is not aware
of, and was not advised of during that time, when I was hot under the collar at [defense counsel]
continuing to press an issue about a slanderous allegation of me making inappropriate statements
towards a white female employee in the workplace. That’s when -- and let me correct the
Magistrate Court’s record of the proceedings on May 18th, 2018. I insisted that [defense counsel]
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The magistrate judge then granted the defendants’ motion in part and
allowed them an additional two and a half hours to depose Williams. The judge
limited the questioning to Williams’ “FLSA claim[], his job duties, his damages,
the witnesses identified in discovery, and the 1500 pages of documents served on
Defendants on the last day of discovery.” The judge pointed out that Williams had
agreed to continue the deposition, and it was “disturbing” that he claimed
otherwise.
make that call to the court system, because I was tired of the harassment and the attempts at
humiliating me during a time when they should have been asking me very pointed, succinct
questions about Title 42 of the United States Code, Section 1981, as well as the overtime
provisions of the Fair Labor Standards Act, which is -- comes under Title 29. They were asking
me about marriages and divorces and residences and grade point averages and other foolishness.
THE COURT: But my question is this, Mr. Williams: During my conversation with you
telephonically on May 18th, did you not say, “Your Honor, I have no problem in coming back to
any follow-up deposition. I don’t have a problem. If they have any questions, they can depose
me for whatever time frame”?
MR. WILLIAMS: Your Honor, my recollection of that is that I was being cooperative. And I
certainly did not – the Magistrate Court appears to have some problem with an African American
pro se litigant being lied on by a group of individuals. I constantly told the Magistrate Court
during that telephonic conversation that these two attorneys are lying on me. I was hot under the
collar and in no [way] would I ever ask a Magistrate Court or opposing counsel to give me an
examination which exceeds established rules whereby a deposition ought to be conducted. Under
that same provision that [defense counsel] pointed to, it says that under no [way] is anyone
supposed to be deposed more than seven hours. My deposition was seven-and-a-half hours. It
was over 362 pages. And what is also interesting, that the Magistrate Court is apparently refusing
to consider, is within the body of Document No. 116, every individual who was stating that
someone is behaving --
THE COURT: I simply -- Mr. Williams, I simply --
MR. WILLIAMS: Your Honor --
THE COURT: I simply asked you a question: “Do you remember making that statement?”
MR. WILLIAMS: No, I do not remember making that statement.
THE COURT: Okay. All right. Well, go ahead. Continue.
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The judge, noting that Williams had not “even answer[ed] the Court’s
questions directly and succinctly” at the hearing, cautioned him that if he “impedes
or frustrates the examination by failing to respond to defense counsel’s questions
succinctly and directly, the Court may extend the time beyond two and a half
hours, and, if warranted, impose appropriate sanctions” under Fed. R. Civ. P. 37.5
The judge found that the defendants’ failure to include a memorandum of law was
inadvertent and their motion substantially complied with Rule 3.01(a) because it
cited the relevant rules under which they sought relief. The judge gave one more
warning at the end of his order that Williams’ failure to comply with his directives
“may result in the imposition of sanctions without further notice.”
The defendants asked Williams to appear for his deposition on September 12
or 13, 2018. Williams responded that he would not agree to a date until he had
reviewed the magistrate judge’s order. He then filed a motion to vacate that order,
repeating his arguments that the defendants’ motion had failed to comply with
Rule 3.01(a) and that he had not agreed to be further deposed.
The district court affirmed the magistrate judge’s order. It noted that
Williams “continues to file objections that include sweeping complaints about the
5
Fed R. Civ. P. 37(b)(2)(A) provides that a party’s failure to obey a discovery order may result
in numerous sanctions, including “dismissing the action or proceeding in whole or in part.”
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entire case as well as irrelevant allegations that make his objections and filings
unnecessarily long.” The court directed that Williams submit to his follow-up
deposition by September 28, 2018.
The defendants scheduled Williams’ deposition for September 26, 2018.
Williams informed them that he would be available on September 28 and the
defendants agreed to that date. On September 27, however, Williams filed a notice
of appeal to this Court of the district court’s order compelling him to be deposed. 6
He did not appear for the deposition.
The defendants moved for sanctions and dismissal under Fed. R. Civ. P.
37(b) and 41(b) 7 based on Williams’ repeated failure to comply with the court’s
orders compelling his deposition. They sought dismissal of the complaint, or, in
the alternative, the dismissal of his FLSA claim and for attorney’s fees and costs.
Williams moved to strike the defendants’ motion because it exceeded 25 pages and
they had not conferred with him before filing it, in violation of Middle District of
6
We dismissed that appeal for lack of jurisdiction because the district court’s order was not a
final or immediately appealable order. See Doe No. 1 v. United States, 749 F.3d 999, 1004 (11th
Cir. 2014) (explaining that discovery orders are generally not final or immediately appealable).
7
Fed. R. Civ. P. 41(b) provides:
If the plaintiff fails to prosecute or to comply with the[] [Federal Rules of Civil Procedure] or a
court order, a defendant may move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not
under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party
under Rule 19--operates as an adjudication on the merits.
8
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Florida Rule 3.01(a) and (g).8 He again argued that the defendants had failed to
comply with Rule 3.01(a) in their motion for additional time and he sought his own
sanctions against them.
The magistrate judge recommended denying Williams’ motion to strike and
granting the defendants’ motion for sanctions and dismissal. The judge found that
the defendants’ motion did not exceed 25 pages and the requirement to confer with
opposing parties did not apply to motions to dismiss. He noted that “[e]very time
defense counsel issued a notice of follow-up deposition, [Williams] filed a new
(unmeritorious) motion or a notice of appeal to stall the discovery process, thereby
wasting opposing counsel’s and the Court’s time and resources.” Williams had
“engaged in a clear pattern of delay and has shown willful disregard for this
Court’s Orders” and, in light of that, the judge “[did] not have great confidence
that [Williams] would suddenly modify his behavior in response to another order
of the Court.” Because sanctions had not yet been imposed, however, the
magistrate judge believed that monetary sanctions, instead of a dismissal, would be
sufficient.
8
Rule 3.01(g) provides, in part, that “[b]efore filing any motion in a civil case, except. . . [a
motion] to involuntarily dismiss an action, the moving party shall confer with counsel for the
opposing party in a good faith effort to resolve the issues raised by the motion. . . ” M.D. Fla. L.
R. 3.01(g).
9
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Williams objected to the magistrate judge’s report and recommendation,
claiming for the first time to the district court that the reason he had not appeared
for his deposition was because he was “disabled” and “too sick to appear.” 9 He did
not say in what way he was disabled or sick or how it had prevented his
appearance. And he again argued, now for the fourth time, that the court had erred
in granting the defendants additional time to take his deposition because their
motion had failed to comply with a local rule.
The district court adopted the magistrate judge’s report and
recommendation, but instead of imposing monetary sanctions, it dismissed
Williams’ complaint with prejudice under Rule 41(b). The court noted that the
defendants had issued five notices for Williams’ deposition and he had not
appeared for it on any of those dates.10 It found “particularly troubling” that
Williams now claimed that a disability had prevented him from appearing but he
failed to attach any corroborating evidence. And it pointed out that he continued to
assert that the defendants had violated a local rule even though it had already found
that claim meritless. Noting that disagreement with court orders “does not give
9
Williams had mentioned that he was disabled in the telephone conference with the magistrate
judge during his initial deposition, stating that he was “fully disabled” and if the weather turned
“horrible” he would need to continue the deposition.
10
The district court was referring to the scheduled depositions for June 12, 2018, June 29, 2018,
September 11 or 12, 2018, September 26, 2018, and September 28, 2018. (See Doc. 179 at 2;
Doc. 177 at 23-26).
10
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[Williams] license to ignore them,” and “[i]n the face of the Magistrate Judge’s
less-severe recommended monetary sanction, [Williams] persists in conduct he has
been repeatedly warned against,” it concluded that “[i]n light of [his] persistence,
the Court is convinced that no sanction short of dismissal with prejudice will do.”
II.
We review only for an abuse of discretion a district court’s order dismissing
an action under Fed. R. Civ. P. 41(b). Gratton v. Great Am. Commc’ns, 178 F.3d
1373, 1374 (11th Cir. 1999). “Dismissal under Rule 41(b) is appropriate where
there is a clear record of ‘willful’ contempt and an implicit or explicit finding that
lesser sanctions would not suffice.”
Id. “While dismissal is an extraordinary
remedy, dismissal upon disregard of an order, especially where the litigant has
been forewarned, generally is not an abuse of discretion.” Moon v. Newsome,
863
F.2d 835, 837 (11th Cir. 1989) (affirming a district court’s order of dismissal for
failure to obey a discovery order, noting that the plaintiff’s “conduct and words
evidence a refusal to acknowledge the authority of the magistrate [judge] and
indicate no willingness to comply with court orders”).
Williams first argues that the district court abused its discretion in
dismissing his suit for failing to comply with court orders because those underlying
orders were improper. He refers to his argument, raised numerous times in the
district court, that the defendants’ motion for additional time to depose him
11
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violated Middle District of Florida Local Rule 3.01(a). He also asserts that the
defendants failed to comply with Rule 3.01(a) and (g) in their motion to dismiss,
and that the district court consistently excused them from following the local rules
but required him to do so.
Local rules are “designed to help the court identify and organize the issues in
the case” and we “give great deference to a district court’s interpretation of its
local rules.” Fils v. City of Aventura, 647 F.3d 1272, 1282–83 (11th Cir. 2011)
(quotation marks omitted). When a submission is sufficient for the district court,
even if it did not comply with the letter of the local rule, it is “good enough” for us.
Id. at 1283. The magistrate judge found, and the district court affirmed, that the
defendants’ motions substantially complied with the local rules. Because the
motions were sufficient for the district court, they are good enough for us.
Williams next contends that the district court abused its discretion in
dismissing his suit in its entirety, instead of dismissing only his FLSA claim. He
argues that the follow-up deposition was limited only to his FLSA claim, and so
his § 1981 claim, which the defendants had extensively questioned him about
during his initial deposition, should not have been dismissed. That argument fails.
The magistrate judge had ordered Williams to respond not only to questions
regarding his FLSA claim, but also to questions concerning “his job duties, his
damages, the witnesses identified in discovery, and the 1500 pages of documents
12
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served on Defendants on the last day of discovery.” Williams’ follow-up
deposition was not limited to his FLSA claim. The district court did not err in
dismissing both claims instead of one.
Williams also argues on appeal that he is disabled and could not appear for
the deposition, but, as he did in the district court, he fails to provide any details
about his disability and how it would have excused his appearance at any of the
scheduled depositions.
The record supports the district court’s decision to dismiss Williams’ claims.
Williams agreed that he would appear for a follow-up deposition “for whatever
time frame” but later denied doing so. The defendants made five attempts to
schedule his deposition, and each time Williams filed a last minute motion (or a
notice of appeal) to avoid being deposed and refused to appear, even on a date that
he had specifically requested. His conduct resulted in two court orders directing
him to appear for a deposition, which he failed to obey. And one of those orders
informed him that his failure to comply could result in sanctions under Rule 37,
which expressly provides for dismissal of an action for a party’s failure to obey a
discovery order.11 Williams continued to make the same baseless assertions that
11
Although Williams was proceeding pro se, “[e]ven pro se litigants are under an obligation to
obey discovery orders.” Morton v. Harris, 628 F.2d 438, 440 (5th Cir. Unit B 1980). And the
record shows that Williams had litigation experience. He attended law school for approximately
two years and stated that he had previously litigated “three to five” lawsuits on his own behalf in
the Middle District of Florida. The magistrate judge found that Williams had filed “at least
twelve civil actions in the Middle District of Florida alone.”
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the court could not compel him to be deposed because the defendants had not
complied with a local rule. As a result, the district court did not abuse its discretion
by concluding that even “[i]n the face of the Magistrate Judge’s less-severe
recommended monetary sanction, [Williams] persists in conduct he has been
repeatedly warned against,” and “[i]n light of [his] persistence, the Court is
convinced that no sanction short of dismissal with prejudice will do.” See
Gratton, 178 F.3d at 1374. Williams’ “conduct and words evidence[d] a refusal to
acknowledge the authority” of the magistrate judge and the district court, and
“indicate[d] no willingness to comply with court orders.”
Moon, 863 F.2d at 839.
Because the record fully supports the district court’s finding of willful
noncompliance and its conclusion that lesser sanctions would not suffice, dismissal
was not an abuse of discretion.
AFFIRMED.
14
