The case is Macklin v. Charles Schwab No. DKC 16-3923 (D. Maryland) (January 8, 2019). The plaintiff in the case did not comply with discovery, but did make efforts to remedy the noncompliance when Schwab moved for Rule 37 sanctions. The Court elected not to dismiss the case, but to bar plaintiff from using any late-produced evidence. The explanation:
Plaintiff acted in bad faith by repeatedly failing to comply with the court’s Orders to provide complete discovery responses. The court’s May 22, 2018 Memorandum Opinion provided Plaintiff with a detailed list of the discovery requests that remained outstanding at that time, and directed Plaintiff to “provide full and complete responses to all the interrogatories and the request for production . . . in a signed writing under oath.” (ECF No. 24, at 6). In response, Plaintiff failed to comply with the court’s orders and provided only a meager amount of additional information that hardly qualified as a full and complete response to the outstanding discovery requests. However, it is unlikely that Defendant is substantially prejudiced by Plaintiff’s lack of compliance. While insufficient, Plaintiff’s responses provide Defendant with enough information to begin building a defense. As for the need to deter future noncompliance, it is evident that Plaintiff requires such deterrence based on her continued defiance of the court’s Orders. Lastly, as explained in further detail below, dismissal is not the only sanction that would effectively deter Plaintiff’s potential future noncompliance.
Based on the four factors, sanctions are warranted but dismissal is not the appropriate sanction at this time. The sanction of dismissal is to be used sparingly, and is usually called upon in cases where a party is unresponsive or largely absent. See Mut. Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (“[O]nly the most flagrant case, 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 judgment by default.”); Roman v. ESB, Inc., 550 F.2d 1343, 1349 (4th Cir. 1976) (finding dismissal sanction appropriate where plaintiffs “had failed to respond to interrogatories; failed to respond to an order entered by the district court requiring a response to the interrogatories; and additionally failed to respond upon specific request after the court had denied, without prejudice, a first motion to dismiss”); Malry v. Montgomery Cty. Pub. Sch., No. 11-CV-00361-AW, 2013 WL 812020, at *2 (D.Md. Mar. 3, 2013) (dismissing pro se plaintiff’s employment discrimination complaint pursuant to Rule 37(d) where he failed to respond to interrogatories, produce requested documents, or attend a properly noticed deposition). Given Plaintiff’s pro se status, her correspondence and attachments are construed as an attempt to satisfy the court’s August 21, 2018 Order. Although Plaintiff’s discovery responses remain incomplete, Plaintiff supplemented her prior discovery responses by providing Defendant with further information via e-mail on September 10, 2018. (ECF No. 32-1, at 2). Finally, Plaintiff also provided Defendant with her availability in an attempt to schedule a deposition (id.), but Defendant failed to clarify a preferred deposition date and time in its reply email (ECF No. 32-2, at 2). Because dismissal is reserved for more egregious cases of noncompliance, it is not a suitable sanction at this time in light of Plaintiff’s attempts to comply. Additionally, as directed in the foregoing Order, the parties are instructed to schedule and complete Plaintiff’s deposition.
Although Plaintiff’s attempts to comply shield her case from dismissal, they do not shelter her from the alternative sanctions permitted under Rule 37(b)(2)(A). Specifically applicable here is Rule 37(b)(2)(A)(ii), which provides the court discretion to “prohibit the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” In the event that Plaintiff’s case proceeds to an adjudication on the merits, according to Rule 37(b)(2)(A)(ii), Plaintiff will be barred from introducing evidence that was not already provided to Defendant through initial disclosures or discovery. This sanction more appropriately addresses any potential prejudice to Defendant by limiting Plaintiff’s ability to bolster her claims with additional dilatory evidence in the same way Defendant has been limited by her scant discovery responses.
The court also rejected arguments that the case should be dismissed under Rule 41(b) which allows the court to dismiss an action for noncompliance with court orders or the failure to prosecute the claim.