ROBERT B. JONES, Jr., Magistrate Judge.
This matter is before the court to address Plaintiffs failure to follow the orders of the court and to consider whether sanctions under Rule 37(b) of the Federal Rules of Civil Procedure are appropriate.
On July 29, 2016, the Clerk of Court entered an Order for Discovery Plan in this matter directing that initial disclosures "must be made within fourteen (14) days after the Rule 26(f) conference unless (1) a different time is set by stipulation of parties or court order, or (2) a party objects during the 26(f) conference and states the objection and the response thereto in the discovery plan." [DE-10] at 1. The parties were also notified that "[f]ailure to disclose information required by Rule 26(a) or 26(e)(1) may subject the offending party or parties to sanctions pursuant to Rule 37" of the Federal Rules of Civil Procedure. Id.
On September 12, 2016, Defendant filed its Rule 26(f) Report. [DE-11]. Defendant filed an individual report because Plaintiff failed to respond to certain revisions to the proposed discovery plan by the court's deadline. Id. at 1. Defendant's report provided in part: "Defendant proposes, and Plaintiff agrees, that the parties will exchange by September 19, 2016 the information required by Rule 26(a)(1)." Id. On September 20, 2016, the court ordered Plaintiffs counsel, Richard Allen, to notify the court of Plaintiffs position as to Defendant's Rule 26(f) Report by no later than September 30, 2016. [DE-12]. Plaintiffs counsel failed to respond with respect to Defendant's Rule 26(f) Report or file a separate Rule 26(f) Report as ordered. [DE-14] at" 1., The court entered its Scheduling Order on October 4, 2016, in which it directed that the parties' initial disclosures under Rule 26(a)(1) were due by October 18, 2016. Id. Plaintiff filed a response on that same date, acknowledging that Defendant's Rule 26(f) Report was "acceptable to the Plaintiff." [DE-15].
On November 10, 2016, Defendant's counsel Sent Plaintiffs counsel a letter and an email reminding him of the deadline to make initial discloses and advising that Defendant bad not received Plaintiffs initial disclosures. Def.'s Mcrn. [DE-18] at 3; Nov. 10, 2016 Letter [DE-18-1]. The letter appears to have been mailed to an address which differs from Plaintiffs counsel's current record address. Defendant's counsel then left follow-up voicemail messages with Plaintiff's counsel Def.'s Mem. [DE-18] at 3-4. On February 15, 2017, Defendant's counsel sent Plaintiffs counsel an email requesting Plaintiffs initial disclosures. Feb. 15, 2017 Email [DE-18-2].
On March 1, 2017, Defendant filed a motion to compel Plaintiffs Rule 26(a)(1) initial disclosures. [DE-17]. Plaintiff did not respond to Defendant's motion. On April 7, 2017, the court allowed Defendant's motion to compel Plaintiff to provide initial disclosures in accordance with Rule 26(a)(1) of the Federal Rules of Civil Procedure and ordered Plaintiff to provide those disclosures to Defendant by no later than April 21, 2017. [DE-19]. The court also ordered Plaintiff to show cause in writing by no later than April 21, 2017 as to why he should not have to pay the reasonable expenses, including attorney's fees, that Defendant incurred in filing its motion to compel. Id. On May 1, 2017, Defendant filed a notice informing the court that Plaintiff had failed to serve initial disclosures on Defendant and a review of the docket indicated that Plaintiff failed to otherwise respond to the court's April 7, 2017 order as directed. [DE-20]. The court directed the parties to appear via telephone on May 9, 2017, for Plaintiff to show cause for his continued failure to comply with the court's order and why further sanctions should not be imposed. [DE-21]. Additionally, the court directed Defendant's counsel to file affidavits of costs and fees incurred in bringing the motion to compel. Id. On May 9, 2017, the court held the telephonic show cause hearing, at which counsel for the Defendant appeared. [DE-22]. Neither Plaintiff nor his counsel appeared at the hearing.
During the May 9 hearing, Defendant's counsel represented to the court that while Defendant had propounded written discovery requests upon Plaintiff, Defendant had not received Plaintiffs responses and the response time had expired. Despite attempts to contact Plaintiffs counsel, Defendant had not heard from Plaintiffs counsel as to the status of the outstanding discovery requests or the initial disclosures, which still had not been provided. Counsel for Defendant outlined her attempts to contact Plaintiffs counsel, which included leaving a voicemail on May 2, 2017 and sending a follow-up email on May 4, 2017. Plaintiffs counsel did not respond to either contact. The court asked Defendant's counsel to provide the costs and attorney's fees based on time spent from April 21, 2017 to May 1, 2017 in bringing this issue to the attention of the court and in trying to contact Plaintiffs counsel.
On May 9, 2017, the court entered an order directing Plaintiff to show cause in writing by May 15, 2017 why his conduct does not warrant further sanctions by the court, including but not limited to dismissal of the case pursuant to Rule 37(b) of the Federal Rules of Civil Procedure. [DE-23]. Plaintiff did not respond to the court's order.
Pursuant to Rule 37(b)(2)(A), if a party fails to comply with an order to provide discovery, the court may issue further orders, including "dismissing the action or preceding in whole or in part. . . ." Fed. R. Civ. P. 37(b)(2)(A)(v). Additionally, instead or in addition to the enumerated sanctions, "the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses including attorneys' 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(b)(2)(C). As such "[a] district court has wide discretion under Rule 37(b)(2) . . . to impose sanctions for failure to comply with discovery orders." Jackson v. Vance Cty., No. 5:97-CV-103-BO, 1997 WL 906015, at *1 (E.D.N.C. Nov. 26, 1997) (quoting Mut. Fed. Sav. & Loan Ass'n v. Richard & Assocs., 872 F.2d 88, 92 (4th Cir. 1989)). "Only the most flagrant cases, where the party's noncompliance represents bad faith and callous disregard for the authority of the district court and the Rules, will result in the extreme sanction.of dismissal or judgement by default." Id. (quoting Richard, 872 F.2d at 92).
In determining whether to impose sanctions, specifically to dismiss the case, the court must consider "(1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions." D'Orazio v. OSD Holdings, Inc., No. 5: 16-CV-00011-D, 2017 WL 888225, at *2 (E.D.N.C. Mar. 6, 2017) (quoting Richard, 872 F.2d at 92), adopted by D'Orazio v. OSL Holdings, Inc., 2017 WL 2537243 (June 9, 2017).
In D'Orazio, the court considered whether dismissal of the defendant's counterclaim was an appropriate sanction in response to the defendant's failure to provide initial disclosures and respond to discovery requests. Id. The court determined that in regard to the first factor, the defendant acted in bad faith as it willfully refused to participate in the matter. Id. As to the second factor, the court found that the defendant had prejudiced the plaintiff by failing to provide Rule 26 disclosures and responses to the plaintiffs discovery requests. Id. The plaintiff sought information to defend himself from the counterclaim and the defendant's failure to participate in discovery prejudiced the plaintiffs ability to proceed. Id. As for the third factor, the court was troubled by the fact that the defendant had filed a counterclaim and then "essentially abandon[ed] the case. . . ." Id. The court found that "[t]here is obviously a need for deterrence when a claimant files a claim and then does nothing to pursue it." Id. (quoting US. v. $8,369.00 in US. Currency, 1:08-CV-145, 2009 WL 88060, at* 1 (M.D.N.C. Jan. 12, 2009) (recommending dismissal of claim under Rule 37(b) where the claimant failed to comply with court orders to produce discovery)). Lastly, when determining whether less drastic sanctions would be available, the court found none as the defendant had essentially abandoned the case and was refusing to reply to the plaintiffs requests. Id. It is important to note that "the court [was] cognizant that such sanctions are harsh, and that our case law emphasizes the significance of warning a Defendant about the possibility of default sanctions before entry." Id. (citing Hathcock v. Navistar Int'l Transp. Corp., 53 F.3d 36, 40 (4th Cir. 1995)). The court ordered the defendant to provide its Rule 26 disclosures and discovery responses to the plaintiff by a date certain, however, the court explicitly warned the defendant that failure to do so could result in dispositive sanctions pursuant to Rule 37(b)(2), such as dismissing the counterclaim and entering default judgment in favor of the plaintiff. Id. Subsequently, upon the defendant's failure to comply with the court's order despite the warning, the court dismissed the defendant's counterclaim with prejudice and entered judgment in favor of the plaintiff. D'Orazio, 2017 WL 2537243, at *2.
Applying the four factors to the instant case, the circumstances before the court present a compelling case for dismissal akin to the court's ruling in D'Orazio. In regard to the first factor, it would appear that Plaintiff is acting in bad faith by willfully refusing to participate in this matter. Plaintiff has not provided initial disclosures and discovery responses, and despite repeated attempts to contact Plaintiffs counsel, he has failed to respond to Defendant's counsel and has also repeatedly failed to respond to the court as directed. See D'Orazio, 2017 WL 888225, at *2 (discussing how the entity defendant allegedly was defunct and no longer in existence, but ultimately determining that based on the defendant's failure to provide discovery responses,"[w]hatever the case, [it] is willfully refusing to participate in this matter."); Jackson; 1997 WL 906015, at *1-2 (determining that a represented plaintiffs repeated failure to participate in his deposition and to comply with the court order directing such was "now without excuse"). With respect to the second factor, Plaintiff has prejudiced Defendant by refusing to provide his initial disclosures even after being ordered to do so. Defendant has been unable to commence discovery, prejudicing its ability to gather information and defend the case. See D'Orazio, 2017 WL 888225, at *2 (noting that the information sought by the plaintiff through discovery "is necessary . . . to defend himself against [the defendant's] claims."). In regard to the third factor, there is a strong need to deter parties from initiating lawsuits and then abandoning their cases. Id. Lastly, there are no less drastic sanctions available. The undersigned has issued four orders in this case, all of which Plaintiff has chosen inexplicably to ignore. In its most recent order, the court pointedly warned Plaintiff that his failure to respond may lead to dismissal of this case. Accordingly, based on Plaintiffs willful refusal to participate, the prejudice to Defendant, the need for deterrence, and because less drastic sanctions have not been effective, it is recommended that Plaintiffs complaint be dismissed with prejudice. See D'Orazio, 2017 WL 2537243, at *2 (dismissing the defendant's counterclaim with prejudice and entering judgment in favor of the plaintiff after noting that the defendant had been warned of such possible sanctions, and holding that "imposing sanctions is appropriate based on the record, [the defendant's] bad faith, the prejudice to [the plaintiff], the need for deterrence, and [the defendant's] lack of compliance with the Order."); Jackson, 1997 WL 906015, at *1-2 (dismissing the complaint with prejudice and noting that "[t]his sanction is appropriate considering the repeated efforts to enforce discovery on the plaintiff in this case.").
At the May 9, 2017 hearing, the court asked Defendant's counsel to provide the costs and attorney's fees based on the time spent from April 21, 2017 to May 1, 2017 in bringing this issue to the court's attention. In ruling on the motion to compel, the court had previously ordered Plaintiff to show cause why he should not have to pay Defendant's reasonable expenses incurred in bringing the motion to compel. Defendant's counsel filed two affidavits of costs and fees, one seeking $2,065.00 in attorney's fees [DE-24], and one seeking $1,732.00 in attorney's fees [DE-25]. Defendant's counsel also filed an affidavit affirming that the requested fees were reasonable and customary in the market for attorneys of similar experience and background practicing in similar areas. [DE-26]. Plaintiff did not file a response in opposition.
According to Rule 37(b)(2)(C), the court must order a party who has failed to comply with a court order regarding discovery, that party's counsel, or both to pay the reasonable expenses including attorney's fees. Fed. R. Civ. P. 37(b)(2)(C). Additionally, the court may also order the payment of attorney's fees in connection with a party's failure to provide initial disclosures. Fed. R. Civ. P. 37(a)(5)(A). Here, according to the affidavits from Defendant's counsel, the expenses incurred in bringing the motion to compel and following up with the court are approximately $3,797.00. [DE-24 through-26]. See Laschkewitsch v. Legal & Gen. Am.,Inc., No. 5:15-CV-251-D, 2017 WL 1024992, at *2 (E.D.N.C. Mar. 14, 2017) (holding that defendant was entitled to recover the reasonable expenses and attorney's fees incurred due to plaintiffs failure to participate in discovery).
When calculating attorney's fees, the court must "determine a lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate." Brodziak v. Runyon, 145 F .3d 194, 196 (4th Cir. 1998) (quotations and alteration omitted); see Robinson v. Equifax Info. Servs., LLC, 560 F.3d235, 243-44 (4th Cir. 2009); Grissom v. Mills Corp., 549 F.3d 313, 320-21 (4th Cir. 2008). The court does so by applying the Johnson/Barber factors. See Hensley v. Eckerhart, 461 U.S. 424, 433-34 & n.9 (1983) (explaining lodestar calculations and approving the twelve-factor test set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), overruled on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989)); Barber v. Kimbrell's, Inc., 577 F .2d 216, 226 n.28 (4th Cir. 1978) (adopting Johnson's twelve-factor test).
The Johnson/Barber factors include:
Grissom, 549 F.3d at 321 (citation omitted). Although the Johnson/Barber factors often are subsumed in the district court's determination of the lodestar figure, the court also may consider those factors in evaluating whether the lodestar figure is reasonable. Hensley, 461 U.S. at 434 n.9. However, a court need not list each Johnson/Barber factor or comment on those factors that do not apply. See, e.g., Bergstrom v. Dalkon Shield Claimants Trust (In re A.H Robins Co.), 86 F.3d 364, 376 (4th Cir. 1996) ("the district court considered those factors of the litany that are applicable to the present fee determination, and the district court is under no obligation to go through the inquiry of those factors that do not fit").
Plaintiff has failed to respond to Defendant's showing of costs and fees and therefore has failed to demonstrate any reason for why sanctions in the form of attorney's fees and costs would be unjustified. Thus, the court turns to the Johnson/Barber factors to determine whether the submitted lodestar of $3,797.00 is reasonable. Defendant's counsel Ms. Ramseur spent at least 2.0 hours through March 1, 2017, the date the motion to compel was filed, reviewing correspondence with Plaintiffs counsel, reviewing research, and assisting in preparing the motion to compel and supporting memorandum. [DE-24] at 1. An additional 3.9 hours were spent with respect to the motion after April 21, 2017, as Ms. Ramseur attempted to contact Plaintiffs counsel, assisted in preparing Defendant's Notification, and prepared for and participated in the show cause hearing. Id. at 2. Ms. Ramseur's billable rate is $350.00 per hour and her legal fees and costs totaled $2,065.00. Id. at 1-2. Mr. Nelson also worked on the motion to compel for 4.0 hours through March 1, 2017 by conducting research, assisting in preparing the motion, and drafting letters to Plaintiffs counsel. [DE-25] at 1-2. In addition, after April 21, 2017, Mr. Nelson spent 2.3 hours drafting Defendant's Notification, participating in the show cause hearing, and responding to the court's order as directed. Id. at 2. Mr. Nelson's billable rate is $275.00 per hour and his legal fees and costs totaled $1,732.00. Id. at 1-2. Defendant's counsel also submitted affidavit testimony establishing that the billable rates for Ms. Ramseur and Mr. Nelson are reasonable.and customary compared to attorneys of similar experience and background who practice in the same area. [DE-26]. The court has reviewed these exhibits and determines the hourly rates of Defendant's counsel are reasonable, however, considering the relevant Johnson/Barber factors, the court finds the 12.2 hours of attorney time to be excessive. The court has considered the time and labor expended, the hourly rate for Defendant's counsel, and the experience, reputation and ability of Defendant's counsel. See Grissom, 549 F.3d at 321. The submitted lodestar figure should be discounted based on what appears to be an overlap in work performed, and the court deducts 2.0 hours from Ms. Ramseur's and 1.0 hour from Mr. Nelson's submitted hours as duplicative where Ms. Ramseur's time spent reviewing the research for the motion to compel is excessive and Mr. Nelson had limited participation in the show cause hearing. See Hensley, 461 U.S. at 434 (noting that courts should exclude from attorney's fee awards "hours that are excessive, redundant, or otherwise unnecessary. . . ."). As such, the court determines that an award of $2,822.50 is reasonable.
Accordingly, the court finds that Defendant's counsel is entitled to an award of $2,822.50 in costs and fees incurred in bringing the motion to compel. Plaintiff and/or his counsel shall pay counsel for the Defendant the amount of $2,822.50 as soon as possible but no later than July 21, 2017.
For the reasons set forth above it is RECOMMENDED that the case should be dismissed with prejudice and it is ORDERED that Plaintiff and/or his counsel shall pay counsel for Defendant $2,822.50 for expenses incurred in bringing Defendant's motion to compel [DE-17] and failing to comply with the court's order [DE-19], as soon as possible but no later than
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until
SUBMITTED and ORDERED.
