[DO NOT PUBLISH]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
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Kelly and Old Dominion agreed to allow a magistrate judge to conduct all proceedings
in the case, including the entry of a final judgment.
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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
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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
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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
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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
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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
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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
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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
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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, 178 F.3d 1373, 1374 (11th Cir. 1999). The
district court’s factual findings are reviewed for clear error. Zocaras v. Castro, 465
F.3d 479, 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, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984, 124 L.Ed.2d 21 (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
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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., 737 F.2d 1538, 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.” Id. at 1539
(quotation omitted); see Griffin v. Aluminum Co. of Am., 564 F.2d 1171, 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, 590 F.2d 609, 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, 766 F.2d 1533, 1535 (11th Cir. 1985). “Dismissal of a case
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with prejudice is considered a sanction of last resort, applicable only in extreme
circumstances.” Id. In reviewing 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.” Id. (quotation omitted). Mere negligence or
confusion is not sufficient to justify a finding of delay or willful misconduct.
McKelvey v. AT&T Techs., Inc., 789 F.2d 1518, 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, 863 F.2d 835, 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
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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”); McNeil, 508
U.S. at 113, 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
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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 Hepperle, 590 F.2d at 613. Furthermore, Kelly never attempted to
confer with Old Dominion before filing his motion in opposition to the deposition.
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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 Zocaras, 465 F.3d at 483. 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 Hashemi, 737 F.2d at 1538-39; Moon, 863 F.2d at 837.
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
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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., 12 F.3d 1045, 1052 (11th Cir. 1994). As noted previously, the
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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.
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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., 475 F.3d 1239, 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 Corwin, 475 F.3d at 1239; 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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