Singletary v. Wells Fargo Wachovia Mortgage Corp
2:11-cv-00484
D.S.C.Jun 20, 2012Background
- This is a foreclosure-related civil action brought pro se under FH A and related federal and state claims.
- Defendant Wachovia Mortgage Corp./Wells Fargo moved to dismiss for lack of prosecution due to Plaintiff's deposition refusal and dilatory litigation conduct.
- A Roseboro order advised Plaintiff on the importance of dispositive motions and adequate response.
- Scheduling order dated June 7, 2011 set discovery deadline; no Rule 26(f) conference was required in this case.
- Plaintiff appealed and sought stays; Fourth Circuit dismissed the appeal and denied vacatur of referral to the magistrate.
- Defendant’s deposition notice and Plaintiff’s responses show disputed objections to Rule 26(f) conference and deposition participation; Plaintiff largely delayed discovery while continuing litigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for failure to prosecute is warranted | Singletary argues no Rule 26(f) conference was required and deposition issues blocked prosecution | Wachovia argues Plaintiff’s deposition refusal and discovery delays justify dismissal | Not dismissible at this time; discretion reserved for continued discovery order |
| Whether the Court should impose sanctions or require participation in discovery | Plaintiff contends discovery procedures were not properly invoked | Defendant emphasizes repeated deposition notices and delays by Plaintiff | Plaintiff placed on notice that no Rule 26(f) conference is required and must participate in deposition; potential future dismissal if discovery noncompliance continues |
| Whether an amended scheduling order should be entered to extend discovery | Parties need additional time to complete discovery including depositions | Court should allow reasonable extension if necessary | Recommendation to adopt an amended scheduling order with extended discovery deadlines |
| Whether Rule 26(f) conference is mandatory in this case | Plaintiff insists Rule 26(f) conference is required | Court did not order such conference; not required here | No Rule 26(f) conference is required in this case; deposition participation required instead |
Key Cases Cited
- Link v. Wabash R.R. Co., 370 U.S. 626 (U.S. 1962) (inherent authority to dismiss with prejudice; Rule 41(b))
- Chambers v. NASCO, Inc., 501 U.S. 32 (U.S. 1991) (sanctions authority; broad discretion of the court)
- Martinez v. Johnson, 104 F.3d 769 (4th Cir. 1997) (four-prong test for Rule 41(b) dismissal (personal responsibility, prejudice, history of delay, sanctions less drastic))
- Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982) (four-prong framework for Rule 41(b) dismissal analysis)
- Tinsley v. Quick & Reilly, Inc., 216 F.R.D. 337 (E.D. Va. 2001) (application of Rule 41(b) factors in a district court context)
- Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989) (liberal treatment of pro se litigants; warning as to dismissal consequences)
- Lolatchy v. Arthur Murray, Inc., 816 F.2d 951 (4th Cir. 1987) (salient fact of warning before dismissal for discovery abuse)
- Mutual Federal Savings and Loan Ass’n v. Richards & Associates, Inc., 872 F.2d 88 (4th Cir. 1989) (warning and procedural conduct as context for sanctions)